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RULE I Q. When does an action deemed commenced? A. An action is deemed commenced upon the filing of the complaint.

This is the provision of the old rule. But this old rule that an action is deemed commenced as of the date the complaint is filed has been amended to include a provision which envisions a case when the action is already filed and is amended to include an additional defendant. Example: The case was filed Dec.2, 1997 by A against B only. Under this rule, the action is deemed commenced on Dec. 2, 1997 in so far as only A and B are concerned. On . Dec 3,1997 A filed an amended complaint including now C. Q. When is this action deemed commenced? A. Insofar as A and B are concerned, the action is deemed commenced on Dec. 2, 1997. But insofar as it concerns A and C, the action is deemed commenced on Dec. 3, 1997 (as to C). Q. Why do we distinguish the date of commencement of an action in this situation where the defendant? A. Because we have the law on prescription. is an additional

At the time the case was filed on Dec. 1, 1997, the action against B may not yet have prescribed. But when the complaint was amended on Dec. 3, 1997, the action of A against B and C may have already prescribed. That is why it is necessary to consider the situation like this when the action is being commenced with respect to an additional defendant. RENE NOTES: 1) An action is commenced by the filing of the complaint and the payment of the requisite docket fees within the prescriptive period, this notwithstanding that summons was served on the defendant after the prescriptive period. 2) An action can be commenced by filing the complaint by registered mail. It is the date of the mailing that is considered as the date of filing, and not the date of the receipt thereof by the clerk of court. 3) The amount of damages in the body of prayer of the pleading must enable the clerk of court to compute the docket fees required. 4) The court may allow the payment of the deficient docket fee within a reasonable period but not beyond the applicable prescriptive period. With respect to actions, we have retained the provisions of the old code. With respect to some subject matter under the old rule, a party plaintiff can file only one complaint based on one single cause of action. He cannot split its cause of action. And when he splits his cause of action, the subsequent actions maybe the subject of a motion to dismiss. This rule has been retained in the New Rules in Civil Procedure. Example: (Splitting of causes of action which have been retained) Note: Same parties A is a resident of Sulu, B is of Batanes. There is a piece of land located in Sorsogon. The causes of action of A against B are as follows: 1) sum of money involving P200,000.00 2) reindivicacion over the lot valued at P50,000.00 Q. Can A file a complaint against B joining in one complaint the action for sum of money and the action for reinvidicacion (if it can, with what court and place)? A. Let us vary the facts, the claim for money is P201,000.00. The value of the property is P19,000.00 Q. Can A file only one complaint incorporating therein the sum of money of P201,000.00 and reindivicacion of lot valued at P19,000.00?

A.

Sec. 5 Rule 2(rules on joinder of causes of action ) A party may in one pleading assert, in the alternatives or otherwise, as many causes of action as he may have against an opposing party, subject to the following conditions:

a. the party joining the causes of action shall comply with the rules on joinder of parties; b. the joinder shall not include special civil action or actions governed by special rules; c. where the causes of action are between the same parties but pertain to different venue of jurisdictions, the joinder may be allowed in the RTC provided one of the cases of action falls within the jurisdiction of said court and the venue lies herein; and d. where the claims in all the causes of action are principally for recovery of money the aggregate amount claimed shall be the test of jurisdiction.
The rule on joinder is as follows:

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A party may join two or more causes of action which he has in his favor in only one complaint. So if A has 10 causes of action against B, instead of A filing 10 separate action against B, he may be allowed to file only one complaint, and incorporating therein all the 10 causes of action. Q. A. Supposing his causes of action pertain to different venues or jurisdiction where will A, the plaintiff, file his 10 causes of action embodied only one complaint? The rule is, if these 10 causes of action pertain to different venues, the action may be filed in the appropriate RTC provided that the venue of the action lies therein.

In the former example, the first action was the sum of money involving P200,000.00 only and the second cause of action is reinvidicacion involving P50,000.00. Since A is not obliged to allege all causes of action in one complaint, he may elect to file two separate actions: 1) A vs. B for sum of money 2) A vs. B for reindivicacion. Q. If he were to file this action for sum of money only, in what court of what place may A file the complaint? A. You apply Rule 4 venue Since this is a personal action for sum of money, the venue could be the residence of plaintiff A, or the residence of the defendant B at the election of A. So this case can be filed either in Sulu or Batanes. Q. A. Q. A. Q. A. In what court in Sulu or in Batanes may this action of A be filed? Considering the amount which is only P200,000.00, this is within the jurisdiction of MTC. So this case can be filed either in the MTC of Sulu or in the MTC of Batanes. If A were to file an action for reindivicacion, over this lot located is Sorsogon, in what place should A file the case? We apply again Rule 4 Venue and that would be Sorsogon. In what court in Sorsogon should the action be filed? Considering the value P50,000.00, this action should be filed only in RTC of Sorsogon.

Let us assume however that A elected to file only one complaint involving these sum of money of P200,000.00 and this property involving P500,000.00. The court that has the jurisdiction over the sum of money of P200,000.00 is the MTC. The court that has the jurisdiction over reindivicacion is the RTC of Sorsogon. Q. A. Where can these two actions be filed? Only in the RTC of Sorsogon. It cannot be filed in Sulu or Batanes. It can be filed only in Sorsogon. Let us get the reverse… The value of sum of money is P200,000.00 and so this is within the jurisdiction of the RTC. The value of the property here is P19,000.00, this is within the jurisdiction of the MTC. Q. A. Can you now join these two? Yes, in the RTC of Sorsogon. Not in Sulu or Batanes, but in the RTC of Sorsogon.

Example: A resident of Sulu, sued B a resident of Batanes, in only one complaint alleging therein these two causes of action: 1. For recovery of P200,001.00 sum of money, 2. For forcible entry over a piece of land located in Sorsogon valued at P19,999.99. Q. Can A join only in one complaint on these two (2) causes of action? A. These two cannot be joined because one is an ordinary civil action (sum of money) and the other is a special civil action (forcible entry). This is one of the limitation of joinder of causes of action. A special civil action cannot be joined with another action which is ordinary. Example: A is a resident of Sulu, B of Batanes, C of Zamboanga. A loaned 1M to B, and the loan is evidenced by a promissory note which B signed. The promissory note matured without B paying the money notwithstanding. A has another cause of action against B and C for another 1M pesos, a promissory note was also executed and signed by B and C. The promissory note also matured but they did not pay. Q. A. Can A file only one complaint against both B and C incorporating therein these two causes of action? (The action against B for 1M pesos and another action against B and C for P1M) No, A cannot file only one complaint against B and C, otherwise, A will violate one

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of the limitations (Sec. 5 (a)) provided for in joinder of Causes of Action under Rule 2 Section 5. If A is permitted to do so, it will be a violation of the provision on Rules on Joinder of Parties under Rule 3 Sec. 6. C has nothing to do with the first promissory note executed by B. C has no interest on the first cause of action of A against B alone. Example: A has the following causes of action for recovery of money against B, all in the promissory notes that matured on: 1. Jan. 10, 1998 P 20,000.00 2. Jan. 20, 1998 30,000.00 3. Jan. 30, 1998 40,000.00 4. Feb. 10, 1998 50,000.00 5. Feb. 15, 1998 60,000.00 6. Feb. 20, 1998 70,000.00 ========= P270,000.00 A is a resident of Sulu and B of Batanes. B did not pay on Jan. 10, B did not pay on each and every maturity. But A waited for the maturity on this loan due on Feb. 20, 1998. Since he was not paid on Feb. 20, 1998, he now decided to file an action involving all these sum of money. Q. Should he (A) decide to file a case on Feb. 25, 1998, against B, in what court should the action be filed? A. It should be filed in the RTC of Sulu or in Batanes. Where all the causes of action are principally for money, the type of jurisdiction is the totality of the amounts in all the cases. If you were A and you want to file only an action for the recovery of P20,000.00 you will file this with the MTC. This is the same with respect to other causes of action. Individually, they are triable by the MTC. But if all these causes of action are joined in only one complaint, the totality or the language of the rule, ―the aggregate,‖ of the amount furnish the jurisdiction al test. So, since the amount is P270,000.00, this is an action triable by the RTC. So you file the action not in the MTC but in the RTC. RENE NOTES 1) In case the obligation is by installments, each installment constitute a cause of action HOWEVER, if at the time of bringing of the suit, several installments are already due, all must be included otherwise, others not included will be barred.

Before April 9, 1999, the jurisdiction of the MTC was limited to P100,000.00 and the RTC’s in the amount in excess of P100,000.00. So under the old rule, before April 9, 1999, all claims (money claims) not exceeding P100,000.00 was triable by the MTC. All claims exceeding P100,000.00 were triable by the RTC. This is the provinces. Under the old rules, where the claim was for the money and the parties thereto was the residents of Metro Manila, the jurisdiction of the RTC’s in Metro Manila was in excess of P200,000.00. Beginning, however April 9, 1999, the jurisdiction of the MTC were expanded as follows: In areas outside Metro Manila, the jurisdiction of the MTC’s extended up to P200,000.00. But in Metro Manila, Beginning April 9, 1999, the jurisdiction of the MTC’s was P400,000.00 So, as of now the jurisdiction of the Metro Manila MTC’s is P400,000.00. But in areas outside Metro Manila, the jurisdiction of the MTC’s is up to P200,000.00 only. This now the new rule which implemented Sec. 5 of RA 7691. RA 7691 expanded the jurisdiction of the MTC’s.
Q.state the rule on permissive joinder of parties A.

All persons in whom or against whom any right to relief in respect to or arising out of the same transactions is alleged to exist, whether jointly, severally, or in the alternative, may except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connections with any proceedings in which he may have no interest.
The rule contemplates a situation where there are two or more persons in whom a right to relief exist or against whom a right to relief exist. These two or more persons can join in one complaint or can be joined as defendants in one complaint provided that there exist between them a question of law common to both of them. As the term suggests, joinder is not mandatory. It may be availed of by parties as plaintiffs if they want to. If they do not want to join as parties, they cannot be compelled. Example: A, B and C are owners of adjoining houses. X is a driver of a gasoline tanker. Because of the manner X drove the tanker, the driver struck a Meralco Post. As a result, the tanker turned turtle (naging pagong ang tanker…) in the process, it exploded. The fire burned the houses of A, B, and C. A can sue X for the loss of his house. B can sue X for the loss of his own house. C can sue X for the burning of his own house. If these were so, there will be now, three (3) complaints

Sec. 6 Rule 3

1) right to relief arises out of the same transactions or series of transactions. 2 Rule 3 . 2) there is a question of law or fact common to all the plaintiffs or defendants. B and C filed separately the case. What is the basis of the right of B against X? The same. or B and C. Why? A. What is the basis of the right of relief of C against X? The same. they have each a separate cause of action against X. This is the rule on permissive joinder of parties. No. which is common to all of them. Parties to an Action Q. He is one who may be prejudiced by the judgment or it is he who may avail of the Sec. Q.  the court shall order joinder  non-compliance-ground for dismissal * If the court does not order the joinder of an indispensable party. B and C. Who can be parties to an action? Only natural persons or persons with judicial personality or entities authorized by law. or better still. Permissive Joinder-parties can either be joined in a single complaint or may themselves maintained or be sued in separate suits. Q. or where the party sued is not the real party in interest. the negligent act of X in driving. Is it enough that a person is a natural person or juridical person to entitle him to sue and be sued? A. or A and C. A. The basis of the right of A against X is the negligent act of X in driving. 2 Rule 3 A real party in interest is the party who stands to be benefited or injured by the judgment in the suit. Can they validly do that? A. Requisites of Persmissive joinder of parties. Q. Q. natural or judicial be likewise a party in interest. the complaint or suit cannot be maintained. whether they will join or they will not join is a matter of them alone to decide. Who is considered a real party in interest? A. A. It is necessary that the party. Q.4 against X. B and C sued X in one complaint. The negligent act of X. and 3) such joinder is not otherwise prescribed by the provisions of the Rules on jurisdiction and venue. B and C be required or compelled to join in one complaint? A. Right to relief exists in favor of all of them. So they can join as parties. Q. A. Q. This rule also applies to counterclaims. If these were to be tried separately. A. Rene Notes: Compulsory Joinder-in the case of: 1) indispensable parties 2) necessary parties * The non-joinder of an indispensable or a necessary party is NOT by itself ipso-fato a ground for the dismissal of an action. Where the person who sues is not the real party in interest. A real party in interest is the one who is benefited by the judgment. On the other hand. they joined in one complaint against X. It is defined in Sec. Yes. They cannot be forced to join. Q. sued X in one complaint. the validity of the judgment may be questioned on appeal or certiorari. if the parties A. No. Series of Transcations-separate dealings with the parties but all of which dealings are directly connected with the same type of subject matter of the suit. B and C or A and B alone. Under the rule on joinder of parties. Can A. What is the basis of their right to relief of A against X? A. A. all of them can join in only one complaint. A and C sued X in one complaint. there will be only one issue that the court will resolve.

A is not a real party in interest. Q. C is not the real party in interest. this is mine. he cannot sue or he cannot be sued.‖ ―No. Q. No. it is not correct. Meaning. B C . Natural person or judicial person. A. What can C now do? A. But A and B said. A. it is not binding. Supposing A is claiming ownership of a lot and he sues C. there is already a d eclaration that this property be divided into 3 and it was already divided into three (3). 3. The party must likewise have the legal capacity to sue. 2. Q. because he was not a party to the case. because whatever judgment that may be rendered in favor of A cannot bind the owner B. Is A the real party in interest? A. if A. to recover the ownership of the lot. Is the reasoning of A and B correct? A. They agreed that the estate shall be divided into three equal parts as follows: A Q. because whatever judgment that he may be rendered in this case will not at all affect the real owner. Q. Example: (Indispensable Party) Testator X was survived by three (3) children A. What are the classes of parties to a suit? We have the: 1. These are the requirements for suing or being sued: 1. Indispensable Parties. A sued B alone for a partition of alleging in fact the court declared A. the subject matter of the suit cannot be terminated. No. Necessary Parties. B and C. He is not bound by the judgment. What else do you like? Q. ―It is pointless. Example: So. No. B and C the owners of the estate and ordered the estate to be divided into three equal parts. Can C be compelled to accept his part? A. But C does not like his part. he must always be impleaded because without his being impleaded as a party. Q. whether a plaintiff or defendant. Is C the real party in interest? A. No. whatever judgment rendered do not terminate the subject matter of the suit. Is it enough that a party be a natural or judicial and a real party in interest to be entitled to sue or be sued? A. It is true that there was a division. So A and B agreed on how the estate be divided. Q. C said ―I do not like that. What is the distinction between the two? In the case of an indispensable party. 2. Why? Because he has a right to be heard when A and B divided this property in the manner they want.5 judgment. So if the person does not have the capacity which he alleges he has. Entity authorized by law to sue and be sued. He must always be there because without him. and Must have the capacity to sue or be sued.‖ Q. He is not. No. I like this part. A. When A and B showed C the 1/3 portion allotted to him. C can file a case for the partition of the same estate asking that this be divided into three (3) equal parts. the tenant of B. a tenant of B sues to recover his land from C. Is the judgment in the partition case binding on C? No. he has the representation that he claims to have. Must be the real party in interest. 4.

A. A can file a case against him to recover from him his share in the P1M. C can file a motion to dismiss the complaint on the ground of ―waiver of the claim of A against C on the failure of A to implead C in violation of the order of the court. But only partially. This is what we meant when we say that ―an indispensable party ought to be impleaded either as a plaintiff or defendant in order to terminate the subject of the case. . the first case did not terminate the question. Should the court find the reason why C was not impleaded to benefit the merit. Q.‖ Rene Notes: 1) spouses as parties G.000. C here is merely a necessary party because even without him. B and C have been impleaded in the case may it terminate. He for left abroad. A necessary party is one who ought to be impleaded in order to accord complete relief to all the parties or in order that the claim respecting the subject matter of the case can be fully adjudicated. his absence from the court as a plaintiff or a defendant does not prevent the case from being settled insofar as the parties thereto are concerned. the subject matter of the case would be fully adjudicated. Q. Can this case between A and B be finally settled? A. you see here. Q. 2) persons affected are so numerous that it is impracticable to bring them all before the court. So. What for is the need to state why C was not impleaded? So that the court could determine whether the reason for the non-inclusion of C is valid or not. when an indispensable party is not impleaded. That is why. The claim of A against C remain pending. He did not sue C because at that time when the case was filed C was no longer in the Philippines. But you will know that the better judgment will be rendered in favor of A will cover only the part of B in the P1M. What will be the effect of filing by A of his claim against B and C at the same time? A. so that where C is already within the jurisdiction of the court. to settle the entire P1M. the case will be settled insofar as the parties are concerned. What is the effect of such non-compliance on the right of A to recover from the claim filed? A. But if this omitted party could have been impleaded. Whereas. If a case is filed and the necessary party is omitted. however. so that should A eventually file a case against C.R. Yes. A sued B only. the reason why he is not impleaded should be stated in the complaint. in violation of that order of the court.‖ So. Who is the necessary party? A. In order. His claim of P1M will be entirely settled in only one procedure. if C was with the jurisdiction of the court at the time when the complaint was filed. . he can file a case. So the court will decide the case awarding A only P500.spouses sued jointly Exceptions: 1) Abandons or fails to comply with marital obligations 2) Spouse disposes exclusive property 3) Regime of complete separation of property 2) class suit Requisites of a class/representative suit 1) subject matter of the controversy is one of the common or general interest to many persons. when a party is a necessary party. Since. this claim of A against B can be settled. the case filed can be terminated. the court will now order A to amend his complaint and implead C. in alternative form. he was not heard. 3) parties bringing the class suit are sufficiently numerous or representative of the class and can fully protect the interests of the concerned. the complaint may be dismissed. Q. nevertheless. but he is not impleaded. The liability of B and C are merely joint not solidary. Even without C. A should have filed a complaint against both B and C. EXAMPLE: A is the creditor of B and C based in the promissory note signed by B and C for P1M.6 As a co-owner he has the right to be heard on how the division should be made. It is only when all the parties A. Q. Such failure on the part of A to comply operates as a waiver of his claim against C. Should A fail to comply in the order of the court.

or even the appointment of an executor or administrator. Rene notes: Unknown Identity or Name of Defendant * Service of summons is by publication Requisites: 1) there is a defendant 2) his identity or name is unknown 3) fictitious name may be used because of ignorance of defendant’s true name and such ignorance is alleged in the complaint 4) identifying description may be used: sued as unknown owner. and judgment will bind the successors in interest. B died. The rule is this: A plaintiff may have the right but he is not certain or sure against whom that right should be asserted. While this case was pending. the court does not acquire jurisdiction over the substitute party. express or implied. But who of them is responsible. * No summons is required to be served on the substituted defendants. if there is no notice of death of party and the court has no knowledge thereof. He knows he has the right. If Y is not liable. it must be X. this fact will merely entail the appointment of a guardian ad litem b y the court trying the case upon being informed thereof by counsel of the parties. this machine did not reach A.inform court within 30 days * The death of a client will require his substitution by his legal representative to be ordered by the court wherein the case is pending. This is the concept of alternative defendants. HOWEVER. Transfer of Interest * Substitution of parties is not mandatory. but he has the right to recover the value of the machine. the proceedings are not set aside. failure to do so does not w arrant the dismissal of the case. the order of substitution shall be served upon the parties substituted in the action. Instead. there was supposed to be an arrastre operator who should have taken upon its being unloaded in the port of Manila. by a court of probate jurisdiction. The carrier X brought this machine to the Phils. or other designation 5) amendment to a pleading when identity or true name is discovered 6) defendant is the defendant being sued. or other reliable sources. Unless the substitution by or the joinder of the transferee is required by the court. Sec. the court would have no jurisdiction over the estate. . the parties themselves. If it is not X who is liable.7 Concept of Alternative Defendants Q. 20 Rule 3 When the action is for recovery of money arising from contract. But he does not know who of them is liable under this rule. he is entitled to sue all these persons in the alternative. When may a party plaintiff sue defendants in the alternative? A. it must be Y. What can A do? A can sue X and Y (arrestre) at the same time. Was it lost while this machine was in the custody of the arrestre? He does not know. otherwise. the case not having been determined with finality? Can it continue or must be dismissed? A: Example: A the creditor sued B to recover the loan. The fact is. he extended. the heirs and the executors or administrators. the debtor dies. * A transferee pendente lite is a proper and not an indispensable party. not a mere additional defendant Death of a Party Duty of counsel. When the case is pending against the debtor. heir. * If there is failure to notify the fact of death: the case may continue and the proceedings will be held valid. it shall not be dismissed but shall instead be allowed to continue until entry of final judgment. * The court cannot compel the lawyer to continue with the trial after the lawyer has notified the court of the death of his client. for delivery to A. he does not know. Q. and the defendant dies before entry of final judgment in the court in which the action was pending at the time of such death. A favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially provided in these rules for prosecuting claims against the estate of the deceased person. Q. This is a situation where a contract involving money was entered into: This contract gave rise to the filing of a complaint against the debtor. the entire proceeding is null and void. He does not know who has custody of this machine at the time it was lost. but this time. A. devisee. Otherwise. What now will be the status of this case filed upon the death of the debtor. * The continuance of a proceeding when a party dies without a valid substitution amounted to lack of jurisdiction and that the need of substitution is base on the right of a party to due process. There are two or more persons who may be liable to him in connection with his right. Example: A bought a machine from US. In the case of incapacity or incompetency of the party.

Of course with proper substitution of B by the administrator or executor if there is any. Why? Because the rules in venue likewise involve inferior court and under the RTC.00. upon the death of B. in areas outside Metro Manila. What are the rules on venue involving real property ? A. Where the value of the property exceeds P20. In Metro Manila where the action is for reindivicacion for instance. the venue of the action lie in the proper court of the place where the real or a part of the real property is located. It does not say proper court. this case will be dismissed. No. Indigent Party * The amount of docket and other lawful fees shall be a lien on any favorable judgment upon the indigent party. Why the difference in the case involving title to. But when it comes to forcible entry. Is that so now? A. venue is the proper court? A. possession of or interest in real property. Because under the new law. possession of or interest in. real property. This is true in cases involving title to. entered into by the decedent in his lifetime or the liability for which had been assumed by or is imputable to him. by his heirs. This rule presuppose that the estate of B is under administration either in a testate proceeding or intestate proceeding. He will file the case where the settlement of B’s estate is pending. In the event A wins the case and the judgment becomes final Q. This will continue. the action shall not be dismissed but shall be allowed to continue until entry of final judgment thereon. possession of or interest in. How could A protect his right over his claim. * If the defendant dies before entering a final judgment in the court where it was pending at that time. * Once a final judgment is entered against the estate of the deceased it shall be enforced as a money claim without the need of proving the same. This case will continue litigation until finality.000. arose from a contract. This is the reason why the law does not specify what particular court the case must filed when it involves title to. even the inferior court have jurisdiction cases depending on the value of the property. the court where the action must be filed is specified and that is the inferior court. Q. The death of the debtor B does not extinguish the action. or interest thereon. How will A enforce his right as adjudged by the court? A. express or implied.if it was already dismissed in this case? He can now file his claim as an ordinary creditor in the proceeding. 8 RENE NOTES: Action on Contractual Money Claims Requisites: 1) The action must primarily be for recovery of money. the venue is the proper court of the place where the real property is located. (estate or intestate proceeding) for the settlement of estate of B. then A must file his claim in this case. that action for reindivicacion is tried by the inferior (MTC) not the regional trial court. the venue of the action is the inferior court of the place where real property or part of the real property is located.000. Can the administrator or executor contest in that special proceeding this claim now of A? A. This is the innovation under the new rules. ―only on MTC of the place where the property or any part of the property is located. his claim based on this judgment. the rule is specific. No. So under RA 86 A should file his claim in this proceeding. In forcible entry cases. debt. But when it comes to forcible entry. Q. because it has already been settled by final judgment in that civil case. actions may either be real or personal.00. Where the value of the property involved in the reindivicacion cases does not exceed P20.‖ . 2) The claim subject of the action. possession of or interest in real properties.00. possession of or interest in real property. real property. and the value of the property does not exceed P50. Q. the venue is the inferior court. and not where the money sought therein is merely incidental thereto. When a suit involves title to. If there is none. Rule 4: Venue of Actions The rules on venue are now simplified. For purposes of venue. Q.000. Under the old rule. (MTC) Take note that when it comes to the venue of the property suits involving title to. the action for reindivicacion lands with the RTC. however. So if there was a special proceeding under #SP 34 for the settlement of estate.

it is that place where he may be found. Manila. Q. where the defendant is a non-resident. (as the term suggested. If the action is personal. on the other hand. If this action is filed. What will be the venue of this action? A. an action for declaration of nullity of the marraige of A and B. interest or in title to real property but the action is not forcible entry. Example: A vs. MTC of Pampanga.999. That is why you cannot sue him in a place where he is not a resident. What court has jurisdiction and a court of what place will be the venue? A. It is not absolute. Example: . B the husband is a non-resident defendant of the Philippines whose permanent address is U. but came to the Philippines for a vacation and could be found in Bulan. However. in which case. So A can file the case in Manila. the residence of the plaintiff or the residence of the defendant or in case there are two or more defendants. the recovery of a lot which A claims as his but which B claims is his. what will be the venue? A. A is a resident of Batanes.. the action was one for money. ―non -resident‖). whether the action involves forcible entry or detainer. Caloocan in part.S. While A is a resident of Manila. but he may be found in the Phils. except where the action is one for forcible entry. who is a resident of Sulu file the case? A. or an action for reindivicacion its venue should be any of these places where property is located. Bataan or Batangas. Whether the case is tried by the inferior court or by RTC. the residence of the principal defendant. for recovery of money and A is a resident of Sulu and B is from Batanes. the venue could not be the residence of the non-resident defendant for a simple reason that. venue of the action may either be the residence of the plaintiff or the place where the defendant is found. the action may be filed in the appropriate or proper court of the place where the property or part of the property is located. So. this rule must be followed? A.S. the In our example. This lot is partly located in Pampanga. But if B is not a resident of the Philippines. the action may be filed in the MTC of the place where the property or part of the property is located. The value of this property is P19. Must the venue of this action be the place where the property is located or where any part thereof is located or may there be a case where what is located or may there be a case where what is involved in a suit is a real property and yet the venue need not necessarily be the place where that property is found or where any part thereof is found. in Q.In case of personal actions. at the option of the plaintiff. in part. Caloocan. Sorsogon. A can file action either in Sulu or Batanes at his option. where may A. he was found in Tawi-Tawi. The action involves possession of. a non-resident defendant does not reside in the Phils. Example: The action between A and B involved let us say. the venue may also be the place where he can be found. the venue is the residence of the plaintiff or any of the principal plaintiffs or the residence of the defendant or any of the residence of the principal defendants at the option of the plaintiff. the venue of the action may be the residence of the plaintiff or it there are two or more plaintiffs.A. against the defendant B who is a resident of U. B.C. or Tawi-Tawi at the election of the plaintiff. Example: If A file a complaint against B.S. the property was located in Manila in part.C. the wife is a resident of Manila. Q. But at the time the action was filed. 9 Where real property is located partly in one place and partly in another. Where the action involves title to. that may be one of the venue. He may file the case in Sulu or in Bulan. B is a permanent resident U. Q. But at the time the action was filed. Q.99. Where the defendant is a non-resident defendant. B for forcible entry or reindivicacion. The venue is Batanes. a non-resident of the Philippines. B was found in Tawi-Tawi. In this last case. the action by A can be filed in Batanes. or of Batanes or of Bataan. Sorsogon. Where the subject matter of a case is real property. but is found in the Philippines. is the rule that the venue of the action involving it should be the place where the property is located or where any part of the property is located absolute? So that in all cases. Example: A vs. Example: A sued B. Q. Q. possession of or interest in real property. and the action is personal . Q. A’s residence or in Tawi -Tawi at the option of A.

the agreement of A and B was an oral agreement. a resident of Manila in the RTC of Bacolod City. what will be your correct resolution to the motion? Example: A and B agreed in 1990 that any action between them involving this lot in Tawi-Tawi. This action was filed by B in his residence which is Batangas RTC. The agreement between A and B is ―that any action arising from this lot located in Tawi -Tawi must be filed only in MTC of Batanes. 1. may be filed in Batanes. A being a resident of Manila and B of Bulan.‖ Example: The PHHC awarded the lot in Q. the rule on venue shall not apply where parties have not validly agreed in writing before the filing of the action on the exclusive venue thereof. Since the action was filed in Q. They contended that the proper venue of the action is Q. the venue is the place where the property is located or where a part of the property is located. not in Batanes.‖ Contrary to this writing.C.. The subject matter although involving real property is actually the judgment of the Secretary. the location of the property. Rule on the motion. where the property is located. Therefore the agreement is not enforceable. The prayer of A is for the cancellation of the resolution of PHHC canceling the prior award to A and awarding the same lot to B. He said that the action should be filed in the inferior court of Tawi-Tawi. In the above case. A. on the ground of improper venue. the resident of plaintiff A.‖ A now sued B in Batanes. the venue should be Cotabato. The action by A against B was filed with the Secretary of DENR. You are the judge.C. 4 (b) Rule 4. and B. B now filed a motion to dismiss on the ground that the venue is improperly laid because the agreement called for the venue to be in Batanes. possession or interest in real property. A filed the action in Tawa -Tawi. To annul that order of PHHC canceling the award to A. A is a resident of Manila and B of Batangas. B now filed a motion to dismiss. After A paid so many installments on their lot. If you are the judge. be filed in Batanes.C. where the defendant PHHC reside. Unlike jurisdiction which cannot be the subject of stipulation. The Secretary awarded the right to the timber land to A. For a violation of Forcible Entry. 2. not Bacolod City. not Cotabato.C. This is not an action involving title to. Deny the motion to dismiss under Sec. Under the rule. B sued as well as the Secretary of DENR. So venue would be the residence of plaintiff B or the residence of the Secretary. Q. the PHHC unilaterally cancelled this award and awarded the same lot to B. The agreement was oral. the agreement to be valid must be one which is in writing and the agreement on the venue must be ―exclusive venue. not the residence of B in Batangas. the venue need not necessarily be Q. There are. The venue should be Cotabato. The action filed by B here is an action for certiorari against the Secretary of DENR and A.‖ Where the action involving real property concerns the title to the property. the place where the lot is located. Agreement in writing between A and B provided as follows:: ―Any action arising from this land in Taw—Tawi. Sorsogon. he said ―any action co ntesting my decision should be filed in the court of the place where the property is located. we say. So the motion to dismiss filed in Bacolod City is not proper because Bacolod City could be a venue. to a resident of Bacolod City. therefore. Therefore where the action involving real property does not concern title to the property or it does not concern the possession of real property or does not concern an interest in real property. Example: The action is filed by B against A and Secretary of DENR. The action in effect is a personal action. The Secretary now files a motion to dismiss on the ground that the venue is improperly laid. Deny the motion to dismiss because the agreement used the word ―may‖. or possession of real property or interest in real property. A now sued PHHC which has its office in Q. what will be the correct ruling on the motion to dismiss? A. venue can be the subject of stipulation and therefore the parties can agree that the venue of a particular action as filed and provided the agreement provides for an exclusive venue. you are the judge.10 A and B are litigating who has the better right to timber concession located in Cotabato. what will your correct ruling on the motion to dismiss filed by the Secretary of DENR? Issue: What is involved here is a motion to dismiss filed by the Secretary. the rule that the action should be filed in the place where the property is located does not apply.C. B now contested the action of the Secretary in awarding the right to A. cases when what is involve is real property and yet the venue of the action need not be the place where the property or a part of the property is located. . PHHC and B now file a motion to dismiss on the ground of improper venue. In the case of the annulment of the award made by the PHHC. that the lot is in Tawi-Tawi.‖ Rule on themotion to dismiss filed by B. B now filed a motion to dismiss on the ground of improper venue being the property located in Tawi-Tawi and therefore Tawi-Tawi should be the venue.‖ ―Since the property is located in Cotabato. A now sued B in Batanes although.

If the written agreement on venue provides for a specific and exclusive venue. the recovery of damages is a personal action. In violation of that written agreement. People vs. Batanes would merely be an additional venue. Is the motion to dismiss proper? Yes. the law itself provides. Is there such a situation? Example: A published a libel in Manila. the action may be filed in the proper venue according to Rule 4. because although the property is located in Tawi-Tawi. subsequently filed in the RTC of Ilocos Norte. A filed suit in Tawi-Tawi where the property is located. or in the venue stated in the agreement. B now files a motion to dismiss for improper venue.11 So if the property is located in Twi-Tawi. where the law provides for a specific venue. but merely an additional venue. the action can be filed where the property is located or in Batanes. His ground is that the venue of the action should not be in Ilocos Norte.place where real property located Personal actions 1) residence of the plaintiff 2) residence of the defendant * Choice of the plaintiff Real actions 1) action for the annulment or recision of a sale and the return of realty 2) to compel the vendor to accept payment of the purchased piece of land 3) to compel the vendor to deliver the certificate of title of the land Personal actions 1) action to recover the purchased price of the land 2) an action to compel the mortgagee to accept payment and for the consequent cancellation of a real estate mortgage 3) action to annul the cancellation of award of land in favor of the plaintiff Requisites for venue to be exclusive: 1) A valid written agreement 2) Executed by the parties before the filing of the action.e. A was a resident of Manila. However. RENE NOTES: Venue of Actions Real actions . but A and B agreed before any suit is filed that the venue of the action arising therefrom be in Batanes and this agreement was in writing before the action was filed. the venue agreement controls.‖only Batanes. In the second case. B is a resident of Ilocos Norte. in the place where the property or a part of the property is located or in the place where the plaintiff or the defendant is residing at the option of the plaintiff. Why? Because the wording of the agreement. In our example. The rules on venue found in Rule 4 do not apply in two cases: . an agreement in writing. When the parties agreed in writing before any action is filed the venue of the action be in a particular place. A and B agreed in writing before any suit arise. My option is to file my action in Ilocos Norte. Although B. in this case.‖ The motion to dismiss of B here should be granted. The rules on venue mentioned in Rule 4 do not apply in certain cases. Is there another situation when the rule on venue does not apply other than the ground that there is an agreement is writing providing for a particular venue? The Rules on venue do not apply when there is an agreement in writing providing for an exclusive venue.e. sec 2 (B) has the option to file any action either in my residence or the residence of the defendant A at my (B) option. we do not file the action. A now filed a motion to dismiss this action in Ilocos Norte. therefore. The libel law provides that where a criminal action is filed in a particular venue. an action for damages against A in manila. when the agreement calls for an exclusive venue 2. in addition to these cases that i. i. that any action involving this property located in Tawi-Tawi can be filed ―only‖ in Batanes. the libel case was filed in Manila. where the agreement in writing does not provide for an exclusive venue. the civil action for damages arising form that libel should likewise be filed in the same court where the criminal case is pending. for a specific venue. then it should be that venue provided for by law. Any action for damages arising form the libel filed must be filed in the place where the libel case was filed. So. under Rule 4. his residence. In the first case. the agreement called for an exclusive venue. is a resident of Ilocos Norte. A filed in Manila. for instance. 1. it should be in Manila where the libel cases is filed but B countered this argument. B. is there another situation where the rules on venue mentioned in Rule 4 does apply because in this case. only the venue specified in the agreement can be the venue. So in our example. Q. and 3) Agreement to the exclusive nature of the venue. the motion to dismiss is not proper Rule on the merits of the motion to dismiss Ans. he cannot file the action in Ilocos Norte because the criminal case was filed in Manila. Meaning. In addition to this.

What are pleadings? What are the kinds of pleadings? A. may be changed by the written agreement of the parties JURISDICTION 1. or 5. the civil action for damages arising from that libel should likewise be filed in the SAME COURT where the criminal case is pending. RENE NOTES: 2 kinds of defenses that may be set forth in the answer A. NEGATIVE DEFENSES a. may be waived 3. venue stipulation is merely permissive meaning that the stipulated venue is in addition to the venue provided for in the rule. substantive 4. place where the action is instituted 2. Sec.) party complaint.where a criminal action is filed in a particular venue. procedural 4. Means of Waiving venue: [FO. Insufficient denial or denial amounting to admissions 1) General 2) Denial in the form of a negative pregnant B. power of the court to hear and decide a case 2. Libel Libel Law . When rules on venue NOT applicable 1) when parties agreed in writing for an exclusive venue before any action is filed 2) where the law provides for exclusive venue ex. b) if they are the subjects of two distinct transactions. L] 1) failure to object by means of motion to dismiss 2) affirmative relief sought in the court where the case is filed 3) voluntary submission to the court where the case is filed 4) laches IF PROPERTY IS LOCATED AT THE BOUNDARIES OF TWO PLACES: file one case in either place at the option of the plaintiff IF CASE INVOLVES TWO PROPERTIES LOCATED IN TWO DIFFERENT PLACES: a) if the properties are the object of the same transaction. VS. complaint The claims of a party are asserted in a: 2.12 * In the absence of qualifying or restrictive words. separate actions should be filed in each place. AR.1 Rule 6 Pleadings are written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. file in any of the two places. counterclaim 3.2 Rule 6 (Pleadings Allowed) 1. VENUE 1. Affirmative Defenses in the Nature of Confession or Avoidance . An answer may be responded to by a reply. complaint-in-intervention The defenses of a party are alleged in the answer to the pleading asserting a claim against him. WHEN ALTERNATIVE RELIEF IS SOUGHT – venue would depend on the primary object of the action. third (fourth. etc. Specific denials b. cross-claim 4. cannot be the subject of the agreement of the parties Rule 6: Pleadings Q. Sec. jurisdiction over the subject matter and over the nature of the action is conferred by law and cannot be waived 3.

6 Rule 6 A counterclaim is any claim which a defending party may have against an opposing party. Sec. Q. Yes. This is cognizable by the DOLE Labor Arbiter or the NLRC. In the language of the rule. What is the compulsory counterclaim? Sec. the presence of third parties of whom the court cannot acquire jurisdiction. Supposing he (B) does not file his counterclaim in this case against him. Why? Because it is not in any way related. When is counterclaim compulsory? A. Two KINDS of counterclaims: 1. Such a counterclaim must be with jurisdiction of the court both as to the amount and the nature thereof. A. however. Q. this case filed against him. Why is this permissive? A. 7 Rule 6 A compulsory counterclaim is one which. B files a separate action. No. Q. and subsequently. Compulsory Counterclaim 2. because this is a permissive counterclaim. a permissive counterclaim is one which does not arise out of or is connected with the transaction which is the basis of the subject of the action. A. Example: If A filed a case against B. so that if he can file it separately there are now two cases. On the other hand. B for recovery of lot. arises out or is connected with the transaction or occurrence constituting the subject mat ter of the opposing party’s claim and does not require for its adjudication. The counterclaim of B against A is for the recovery of money which represents the unpaid wages of B payable by A and the wages being the result of a contract of employeremployee relationship. It is a claim by a party defending himself against a party who files a case against him. What is a counterclaim? A. the Answer may cite legal provisions relied upon for defense Q. Q. B can file if he wants in to this main action. Is this money claim of B arising from the employer-employee relationship is not cognizable by the court? A. Example: This is an action of A against B for the recovery of a lot. Example: A files an action against B for collection for sum of money. This action of B against A for recovery of a lot is a permissive counterclaim. Q. Permissive Counterclaim These two are different for in their component elements and the effect of their not being pleaded. However. Because if B wants to he can file his counterclaim against A in the same action. where the counterclaim is a money claim and the court in which the case is pending is the Regional Trial Court. 1) A compulsory counterclaim is one which is cognizable by the court of justice. he may not file if he does not want to file. Any claim by B against A is a counterclaim. . 2) A counterclaim should be connected with the transaction which constitutes the basis of the action of the plaintiff against the defendant. because the money claimed arising from the employer-employee relationship is not cognizable by the courts of justice. A vs. Can he file it separately. 3) This counterclaim does not require for its adjudication the presence of a third person over whom the court does not require jurisdiction. If he does not file it as a claim. No. can A now file an action to dismiss a second action on the ground that this action of B against A should not be pleaded as a claim counter in nature in the civil case? A. B. Q.13 * Unlike the Complaint which alleges only ultimate facts. except that in an original action before the Regional Trial Court the counterclaim may be considered compulsory regardless of the amount. has an action against A for recovery of lot. the counterclaim is compulsory. being cognizable by the regular courts of justice. a counterclaim is compulsory when it is one which is cognizable by the court and arises out or is connected with the transaction or series of transactions which constitutes the basis of the action against him and does not require for its adjudication the presence of the third person over whom the court cannot acquire jurisdiction. the money claim irrespective of the amount is a compulsory counterclaim. 4) This counterclaim is within the jurisdiction of the court except that where the counterclaim is a money claim and the action is filed in the RTC irrespective of the amount whether within or not within the jurisdiction of the court.

This is a permissive counterclaim the fact that it is not pleaded in the answer in the main case.000.000. Is it money claim by nature cognizable by a court whether MTC or RTC? A. irrespective of the amount. this is a recovery of money.000. He does not plead his counterclaim in this action. Supposing.00 but the counterclaim of B is against A and C over this amount is solidary. On the assumption that all the other elements are present. The counterclaim of B is for recovery of the value of the property improvements which B introduced.00. and the Court does not acquire jurisdiction over him. In this case. Q. because the amount claimed though arising from the action exceeds the jurisdiction of the MTC. Q. if A files his complaint and B pleads his money claim arising from the employer-employee relationship. The jurisdiction being only up to P200.S. A. Q. The counterclaim of B arisi ng from this. this is allowed. this counterclaim although arising from that action is merely a permissive counterclaim not compulsory counterclaim because it requires for its adjudication the presence of a third person over whom the court does not acquire jurisdiction. as long as the counterclaim is money. because this is a claim that is compulsory. that counterclaim is not a compulsory counterclaim. In the RTC. Example: The counterclaim of B consists of P200. Now he files a motion to dismiss on the ground that this counterclaim being connected in the claim of A against B should be pleaded.00 Q. that should have been impleaded by B in the main case? A. Yes. let’s say. the action is for reindivicacion because the value of the property is only P200. this is the MTC. however. Q. that this case is filed in the RTC.000. A filed motion to dismiss on the ground that this should have been impleaded in the main case because it arose from this main case. it is not. But supposing B does not file a separate case against A for a recovery of money such that if this is done.00. So.000. Is the motion to dismiss proper? A. This an action filed outside Manila. there will be now two (2) actions Q. Q. Is this counterclaim here allowed to be filed by B as a counterclaim in this case? Yes. he files a separate action on the recovery of P201. Instead. it is always compulsory. Is this counterclaim compulsory or permissive? A. The claim of B is for money arising from a contract of loan being B the lender and A the borrower. B’s counterclaim is not compulsory.14 So.000. B does not plead in his answer in the main case claim and after B files his separate action against A and C to recover his P200. is not a ground to dismiss it.000. Example: Compulsory Counterclaim This is an action for the recovery of a lot. Let us now take a case where the counterclaim is compulsory. but merely permissive.000. Compulsory. Supposing. the value of the improvements which B introduced in this lot is P201. It cannot be filed in this case. because the presence of C is required in their litigation on this P200. And on the assumption that the counterclaim of B against A arises out of this action of A against B. So. Example: The action of B is for recovery of lot. Should B interpose as a counterclaim this action for recovery of money here.00 and C is in U. No. and the counterclaim is only P50. No. This is an action in the MTC. Is the motion to dismiss proper? A. Is it connected with the case filed by A against B for recovery of the land? . The counterclaim must be one which arises from the transaction which is the basis of the action of the plaintiff against the defendant. Can that be validly done? A. because this amount does not arise from the transaction constituting the claim by A against B. Q. Can A validly file a motion to dismiss this complaint on the ground that since this is a counterclaim. No.00.00.

4) The remedy where a counterclaim is beyond the jurisdiction of the MTC is to set of the claims and file a separate action to collect the balance. because the amount being claimed represents the value of the improvements introduced by B in this lot. Q. bec.000. no default. When a counterclaim is compulsory it must be pleaded in the answer. What B did was to institute separate action against A for recovery of the improvements. (3) It is barred if not set up in the action. a counterclaim may be considered compulsory regardless of the amount. Yes. Q. Cross-claim * filed against a co-party * always arises out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. No. otherwise. THIRD-PARTY COMPLAINT * brings into the action a third person who was not originally a party. 3) If a counterclaim if filed in the MTC in excess of its jurisdictional amount. what will be your correct ruling on this motion of A to dismiss the case? A. Does this action for recovery requires the presence of C. is a ground to dismiss it. Is an action for recovery of a P201. COMPULSORY COUNTERCLAIM (1) one of which arises out of or is necessarily connected with the transaction or occurrence that is the subject matter of the opposing party’s claim. Q. Example: In the example that B sues to recover P201. a third person over whom the court cannot acquire jurisdiction? A. it is barred. Q. the fact that it not was pleaded in the main case. both as to the amount and nature thereof. (2) It may require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction.00 one with the jurisdiction of the RTC? A. the filing of the reply is optional except for the denial of the genuineness and due execution of an actionable document used as defense in the answer. A now files a motion to dismiss on the ground that. etc) – party complaint THIRD-PARTY COMPLAINT * seeks to recover form a non-litigant some relief in respect to the opposing party’s claim. except when it is outside the jurisdiction of the court or if the court cannot acquire jurisdiction over third parties whose presence is necessary for the adjudication of said cross-claim. Grant the motion. * TEST to determine whether the third-party complaint is in respect of plaintiff’s claim: . (2) It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Reply Effect of Failure to Reply: new facts that were alleged in the answers are deemed converted. * The dismissal of the complaint carries with it the dismissal of a cross-claim which is purely defensive. * Third party is not yet impleaded. the excess is considered waived. a compulsory counterclaim not pleaded in the answer is considered barred. So. in all these cases therefore. RENE NOTES: Rules on Counterclaim 1) A counterclaim before the MTC must be within the jurisdiction of said court.15 A. the counterclaim is a compulsory counterclaim. * initiative is with the person already a party to the action. that counterclaim is barred . COMPLAINT IN INTERVENTION *same * initiative is with a non-party who seeks to join the action. (3) It is NOT barred even if not set up in the action. * Cross-defendant is a co-party. (4) Need not be answered. He did not plead this as a counterclaim in the action of A. (4) Must be answered. it is connected. otherwise. the defendant can be declared in default. but not a cross-claim seeking affirmative relief. You are the judge. Yes. So. 2) In an original action before the RTC.00 representing the value of improvements introduced on the lot which is the subject matter of the complaint of A. Third (fourth.000. Hence. * If it is not set up in the action. the elements of a compulsory counterclaim are present. which is the subject of the main case. CROSS-CLAIM * claim by a party against a co-party. What is the rule? A. PERMISSIVE COUNTERCLAIM (1) It does not arise out of nor is it necessarily connected with the subject matter of the opposing party’s claim.

While this case was pending. The contents of the certificate. One is for forcible entry and the other for reindivicacion. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute indirect contempt of court. and (c) Whether the third-party defendant may assert any defenses which the third-party plaintiff has or may have to the plaintiff’s claim. the same shall be ground for summary dismissal with prejudice and shall constitute direct contempt. Q. upon motion and after hearing. If the acts of the party or his counsel clearly constitute willful and deliberate forum shopping. b) If there is such other pending action or claim. either you do not accompany or you accompanied the pleading but the certificate contains a falsehood. A filed another action against B also for reindivicacion. and c) If he should thereafter learn the same or similar action or claim has been filed or is pending. No. 2) Statement in that certificate of non-forum shopping of a false certificate. or in a sworn certification annexed thereto and simultaneously file therewith: a) That he has not thereto commenced any action or filed any claim involving the same issues in any court. or although arising out of another o r different transaction. within five (5) days from his receipt or acquisition of knowledge of the pendency of that action. Q. the certificate must be signed by the principal plaintiff. Is there a forum shopping on the part of A? A. These are the forms of violation. A filed a petition for receivership. We call the certificate the certificate of non-forum shopping. 2) Where a party files two or more actions in different courts.16 (a) Where it arises out of the same transaction on which the plaintiff’s claim is based. A filed against B for reindivicacion involving the same lot. a complete statement of the present status thereof. b) That there is no pending action in any other court. 5 RULE 7 ) The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief. c) Should at the time he filed the pleading. What is forum shopping? A. Q. Example: A filed an action against B in the RTC for reindivicacion. Forum shopping takes two forms : 1) Where a party files the same action involving the same issues either simultaneously or successively in more than one court. Is there forum shopping on the part of A? A. quasi-judicial body or any other agency. he did not know of the existence of pending of another action involving the same issues in another tribunal court. he undertakes to notify the court of that fact that there is a pending action. tribunal. Branch 1 RTC of Manila. This is the reason why whenever the party files a complaint or an initiatory pleading. there is none because the two cases involves different issues. . In their action. certifies the following: a) That he has not previously filed in another court. These are the three (3) matters certified by the plaintiff or the principal plaintiff. agency or quasi-judicial body. the two cases are different. In Branch II of Manila. Rule in non-FORUM SHOPPING ( Under SEC. the same action involving the same issues. What are the sanctions against violations of this certificate? A. tribunal or quasi-judicial agency and to the best of his knowledge. Forum shopping is not allowed because this would be constituting to the judicial process making mockery out of the rules. tribunal. Example: A filed an action against B for forcible entry of a particular lot. the status of this action pending in the other tribunal agency or quasi-judicial agaency. quasi-judicial body or any other agency involving the same issues. Violations rule may consist of the following: 1) Failure to attach to the initiatory pleading in the complaint the required certificate of non-forum shopping. the plaintiff or in the proper case. without prejudice to the corresponding administrative and criminal actions. unless otherwise provided. no such other action or claim is pending therein.and if there is pending action in any other court. (b) Whether the third-party defendant would be liable to the plaintiff or to the defendant for all or party of the plaintiff’s claim against the original defendant. for issuance of an injunction. No. the other action filed in another court not being the result of an appeal or a petition for certiorari. he shall report the fact within five (5) days therefrom in the court wherein his aforesaid complaint or initiatory pleading has been filed Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading but shall cause for the dismissal of the case without prejudice. as well as a cause for administrative sanctions. but that he subsequently learns that there is such a pending action involving the same issues. Q. The certificate is signed by the plaintiff and if there are two or more plaintiffs and one is a principal plaintiff and the other is not. the principal plaintiffs. is connected with the plaintiff’s claim. he is required to accompany that complaint or initiatory pleading with a certificate.

What is the sanction? A. Therefore. As the term suggests.17 3) The violation consists in the failure of the party to comply with his undertaking thereafter. Do you have to accompany this permissive counterclaim with a certificate of non-forum shopping? A. A compulsory counterclaim is not an initiatory pleading. Q. he may be proceeded against criminally. Without this complaint of A.#129718 August 17. submitting a false certificate and failure to comply with the undertaking to inform the court of the pending case in another court. So. otherwise. it is one. vs. if A filed a complaint against B for recovery of a lot B files a counterclaim for the value of the improvements over the land. Q. i. Q. In other words. this is an initiatory pleading because it can be filed even without a prior complaint having been filed against a permissive counter claimant. it is all again initiatory. it is barred if it is filed in a separate action.The counsel or the defendant may be held in contempt. But supposing this were a counterclaim for recovery of money which B loaned to A and B pleaded this claim of money as a counterclaim. Q. not only may the lawyer be proceeded against administratively. it does not have to be accompanied by a certificate of non-forum shopping. Rule 8 Sec. Q. in our example for instance. Where the pleading is other than the complaint. So you call this a compulsory counterclaim.R. Is this all the sanction? A. Q. the violations consists of three (3). It is a reaction. No. Do you have to accompany this compulsory counterclaim of B with a certificate of B with a certificate of non-forum shopping? A. which is filed for the first time. Where a counterclaim is compulsory. So. or an initiatory pleading . where the pleading require a certificate is not attached at. Zula. Where a counterclaim is compulsory it is not an initiatory pleading. What is the undertaking there? A. you call this permissive counterclaim. the rule does not require that the pleading be accompanied by a certificate of non-forum shopping. the court may dismiss it without prejudice. Why? Because. is permissive than the pleading must be accompanied by a certificate of non-forum shopping. Q. State the rule on Alternative causes of action or defenses. In this case. Consequently. When is a pleading initiatory? A. for instance. because you cannot file an independent action involving a compulsory counterclaim. Take note that the party on whom the sanctions may be enforced is one who does not comply with this certificate of non-forum shopping.T. Why? Q.) Yes. the certification stated that there was no pending case involving the same issue in another court. Zula G. Not only the pleading be dismissed. What are the sanctions? A. Where the counterclaim however. What are the sanctions? A. he may be administratively proceeded against: When there is a false certification. non-submission. (U. The failure to accompany the pleading with a certificate results in a dismissal without prejudice of the complaint or initiatory pleading upon a prior motion and a prior hearing. Where the forum-shopping is deliberate. To notify the court to the fact that another action is pending in another court. the court may not motu proprio dismiss the complaint. And in the case of the lawyer. The pleading will be dismissed with prejudice and the offending lawyer may be held in direct contempt without prejudice to administrative proceeding against. because this compulsory counterclaim is not an initiatory pleading. ―Only a complaint‖ or an initiatory pleading. only in a case where the pleading which is not accompanied with the certificate is a complaint or an initiatory pleading. There should first be a hearing either a motion of the defendant. A. it must be pleaded in the answer. But when it comes to a permissive counterclaim. That is why a counterclaim is a reaction to the complaint. where the counterclaim is compulsory. when the truth is there is. 1998 (294 S 380). Q. 2 . No. there is no compulsory.e. In the case of UST vs.S. you cannot file a compulsory counterclaim unless there is a first complaint.

When two or more statements are made in the alternative and one of them if made independently would be sufficient. 2) he inherited the land from C. Q. the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. B can allege these as his defenses in his answer. (f) want or illegality of consideration. (c) compromise. knowledge. intent. SPECIFIC DENIAL THREE WAYS OF MAKING A SPECIFIC DENIAL: (a) BY specifically denying each material allegation of the party and of the other party and whenever possible. or (d) the party charged signed the instrument in some other capacity. B. boards. RENE NOTES: Facts that may be averred generally: (a) conditions precedent (BUT there must still be an allegation that the specific condition precedent has been complied with. (b) malice. tribunals. * BUT the following defenses are waived: (a) forgery in the signature. Example: A vs. 18 2) Where two or more statements of a claim or a defense are made and one is made independently of the other which is sufficient. the pleading is not made insufficient by the insufficiency of the other statement of the claim or the other defense. the failure to deny under oath the same results in: 1) The implied admission of the genuineness and due execution of said document except: (a) when the adverse party was not a party to the instrument. the pleading is not made insufficient by the insufficiency of the statement. if made independently of the other. because 1) he bought the land from A. it will be dismissed for failure to state cause of action. setting forth the substance of the matters relied upon for such denial. Could this be validly alleged as B’s defense? A. 3) this lot was donated to him by D. 2) The document need not be formally offered in evidence. either in one cause of action or defense or in separate causes of action or defenses.A party may set forth two or more statements of a claim or defense alternatively or hypothetically. or (g) estoppel. . otherwise. * Defenses that the opposing party may set up even after failure to deny under oath: (a) mistake. Analysis: The defenses are inconsistent with each other. or other condition of the mind (c) judgment of foreign courts. (e) prescription. or officers (no need to show jurisdiction) Facts that must be averred particularly: (a) circumstances showing fraud or mistake in all averments of fraud or mistake (b) capacity * Two permissible ways of pleading an actionable document : (a) By setting forth the substance of such document in the pleading and attaching said thereto as an annex (b) By setting forth said document verbatim in the pleading * Where the actionable document is properly alleged. this is an action for recovery of a piece of land. (b) want of authority of an agent or corporation. 1) Where a person has one claim or one defense he can state that one claim or one defense in two or more statements either hypothetically or in the alternative. (d) payment. (c) want of delivery. (b) past admissions or past denial. and (b) when an order for the inspection of the document was not complied with. (b) fraud. 4) he acquired this by prescription. The rule says that if the statement of the claim or defense is sufficient in itself. (c) By an allegation of lack of knowledge or information sufficient to form a belief as to the truth of the averment in the opposing party’s pleading. The statement of B’s defense that he is the owner is made up of 4 inconsistent statements. The defense of B is that he (B) is the owner.

the denial will be deemed as an admission and entitles plaintiff to a judgment on the pleadings Averments in the complaint NOT deemed admitted even if NOT specifically denied: (a) Allegations as to the amount of damages (unliquidated). a general denial is regarded as admission on the facts stated in the complaint. (c) Incorrect conclusions of fact. (b) Immaterial allegations. Otherwise.19 * A denial cannot be general. . * A negative defense must be a specific denial. and Averments deemed admitted if not specifically denied under oath: (a) Allegations as to usury in the complaint (b) The authenticity and due execution of actionable documents thereto.

This is now the amendment to the old Rule 18. 26. he cannot be declared in default. 1999 assuming that Dec. all those objections available but not so raised are deemed waived and abandoned. He must file a motion in court. lis pendencia or prescription. this is an action for forcible entry. the failure of the defendant who was validly served a summons to file the answer within the reglamentary period. So. A here. lack of jurisdiction or where the evidence shows res judicata already. Can the court moto proprio declare B in default? A. he would file a motion for a new trial at any time after service of judgment by default and within 30 days therefrom c) if he fail to file said motion or the same was denied. This is not now the rule. Neither this lack of jurisdiction of the court to try the forcible entry case alleged as an affirmative defense. if you will file. and fails to file the answer within that period or fails to file any appropriate pleading within that period. A vs. Where the defendant has not been validly summoned. under Rule 14. allege all them either in a motion to dismiss or alternative defenses in an answer. Q. No. if for instance. All those defenses. Or where the evidence shows. Under the old Rule 18. A must file a motion. the court cannot moto proprio declare the defendant in default. So B did not file a motion to dismiss for lack of jurisdiction. 1999. So the general rule therefore is. but Rule 18 now which covered default. a motion to declare a defendant in default could be validly heard without notice to the defendant. There are certain defenses or grounds of objections however which may not be abandoned. Suppose there is a lis pendencia and all these four are redeemed either on the basis of the pleadings themselves or under the basis of the evidence. He was not under the same rules and jurisprudence entitled to a notice of the hearing on the motion. No. ALTERNATIVE AND SUCCESSIVE REMEDIES OF A PRTY DECLARED IN DEFAULT a) file a verified motion in set aside the order of default of any time after discovery of the FAME and before judgment b) if he did not file one or the same was denied. the court can still dismiss the case although lack of jurisdiction was not so alleged. Q. Example: A vs. then the court can dismiss the action. 1999 is a working day within which to file the answer or only appropriate pleading. 10. B was summoned on Dec. Q. res judicata. Yes. the jurisprudence thereunder. if you have defenses or objections. Suppose the case is already barred by the rule on res judicata. under the new rules. there is another subject of Rule 9.R of FAILURE TO PLEAD For instance. 25. 1999 or Dec. Default Used to be covered by Rule 18. one that has prescribed. Default here means. Is jurisdiction here waived? A. The allegations are filed. must file a motion. Suppose the action has already. Rule 18 was limited to default. that a default motion. 26. if not raised in the motion to dismiss or as affirmative defense in an answer are deemed waived or abandoned. It means therefore. if proceeded to trial. or statue of limitation. What is the rule of default? A. Default. Although not raised in the motion to dismiss. will be held ex parte. or although not raised as an affirmative defense. Even if B has not filed an answer. furnish B with a copy of the motion and furnish B with a notice of hearing on the motion. How will A here secure the default of B? A. the court has no jurisdiction over the subject matter of the case. either if they were not initially raised in a motion to dismiss or as an affirmative defense. EXCEPTIONS to the G. Q. Ruling of the court on the motion… . the plaintiff. under the old rule. we may say that B has already incurred in default.20 Rule 9: Effect of Failure to Plead General Rule: All of actions and defenses available at the time the pleading is filed. the court can dismiss this action based on lack of jurisdiction. entitled to a notice of the hearing of the motion to declare in default? A. he could file a petition from relief of judgment within 60 days from notice of the judgment but within 6 months from entry thereof. B. If B was validly served under Rule 14. he could perfect his appeal from and on merits of said judgment by default within the balance of said 30-day period d) if he failed to take any of said steps. Q. This case was filed in the RTC. Is B. or where the evidence shows that the action has already prescribed or the evidence shows that there is lis pendencia. He has only a period until Dec.

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The court may deny or grant the motion. Q. What are the effects of a declaration of default on the defendant? A. There are many. In substance B loses many rights which pertain to a defendant who has not been declared in default: 1) he cannot file an answer; 2) he cannot participate in the proceedings; 3) he cannot present evidence on his behalf; 4) he cannot cross-examine, (the witness of the plaintiff) until he regains his standing as a defendant, because the order declaring him in default is set aside, he is in effect outside the ring, looking at A doing his thing. So, a case where a defendant is not declared in default, is likened to a boxing fight where both opponents are in the ring slugging it out. But in the case of a defendant who has been declared in default, the only person in the ring, is the plaintiff A and B, here the defendant is outside the ring looking at what A is doing. Q. What follows after the court has validly declared the defendant in default? A. 1) The court may now render a judgment. The judgment may be either what is solely in the allegations in the complaint without the court receiving evidence from A, the plaintiff in support of the allegations. 2) The court may receive evidence and therafter render a judgment on the basis of evidence presented by A. Q. Are there limitations on the judgment that the court may render where the defendant is declared in default? A. Yes. The limitations are: 1) The judgment cannot award an amount to the plaintiff in excess of what was claimed in complaint; 2) The judgment that the court may render can never be different from the judgment prayed in the complaint. Where a judgment is rendered without the defendant having been declared in default, the judgment may be different from what has been prayed provided that judgment is sustained by the evidence. Example: If B was not declared in default and the claim of A in his complaint for damages is P1M, but what A proved was P1,000,000.01, the court may award A P1,000,000.01 though it exceeds by one (1) centavo they are valid. But in a default case, No!! even though the evidence of the plaintiff proved that sustained damages P1,000,000.01, the court cannot award an amount in excess of P1M (the amount claimed in the complaint). Q. How may the defendant regain his standing as a defendant? A. He must file a motion to set aside the order of default at any time before the judgment has become final. In other words, if the judgment has already become final, a motion to set aside the order of default is no longer proper. Q. What are the grounds of a motion to set aside a default order? A. Since the default is by reason of failure of the defendant to file the answer, there must be a reason why he failed to file the answer. And this must be the reason he must alleged when he filed a motion to set aside the order of default. Q. What are these? A. You will say: "I fail to file my answer because of the following: 1) Fraud was committed against me, so I did not file the answer. 2) An accident befell me. This accident prevented me from filing the answer on time. 3) I committed a mistake and this mistake prevented me from filing the answer‖ If he said ― I was negligent in not filing, but my negligence is excusable because: 1) 2) 3) These are the grounds, fraud, accident, mistake or excusable negligence, which prevented the defendant of filing the answer. (FAME) Q. Is it enough that these grounds be alleged in the motion to entitle the defendant to a restoration to his status as a defendant? A. No. The motion must be accompanied by the so-called affidavit of merit. The affidavit of merit is composed of two (2) facts: 1) The facts constituting the fraud, the accident, the mistake, the excusable negligence which prevented the defendant from filing the answer. So, the defendant here must recite the facts constituting the fraud, mistake, negligence or accident. He cannot simply say, ― I failed to file my answer because there was fraud committed against me or that an accident befell me or that I committed a mistake or that I was negligent and that negligence is excusable.‖ Why?

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Because these are merely conclusions. So you must state here, ―Fraud was committed against me,‖ In what did consist of? State there! Same thing with the accident, mistake or negligence. 2) The good defenses of the defendant to the action So, in the affidavit of merits, the defendant must state there the facts constituting his defense. He cannot simply say there, ―I have a good defense.‖ No! State there what are your good defenses. Q. What is the reason why the affidavit of merit indicates therein the good defense of the defendant is required? A. The rule is based on this supposition. The court must first examine the defenses of the defendant. To determine whether it is proper or not proper to set aside the order of default and allow the defendant to file his answer and adduced his evidence. Why? Because if the affidavit of merit does not show that the defendant has good defenses so that even if all those defenses alleged in the affidavit of merit were proven, but notwithstanding he will not be still entitled to a judgment in his person, it would be pointless to allow him to go to trial and prove to state which do not entitle him anyway to any favorable ruling. But if after the court has examined the proposed evidence as stated in the affidavit of merit, and finds that if this evidence are established, the judgment may be favorable to defendant, then the court will have a basis of allowing B (defendant) to reacquire his status as a legitimate defendant.(This is the purpose.) Q. Although a defendant has been validly summoned, can he nevertheless be declared invalidly in default even if he did not file the answer? A. YES. When the declaration of default is premature because at the time he was declared B in default, the period of the filing of the answer has not yet expire. Example: The last day for B to file the answer is Dec. 26. The court declared B in default on Dec. 24, 1999. Q. Is the declaration in default proper? A. No. B was not yet in default. Why? Because he has until Dec. 26, 1999 within which to file the answer. So, when he was declared default on Dec. 24, 1999, he has still an additional two (2) days within which to file the answer. So B now files a motion to set aside this default order. Q. Does he need to accompany his motion with an affidavit of merit? A. No, not necessarily. Why> because the default order is illegal. You cannot declare a defendant in default ahead of the expiration of the period of the filing of the answer. Q. Is the failure of the defendant to file the answer within the reglementary period a ground to declare him in default in all cases? A. No. There are certain cases where a defendant cannot be validly declared in default even though he has not filed an answer within the reglementary period. Q. What are these cases? A. The cases are the following: 1) An action for a declaration of nullity or annulment of a marriage; 2) An action on legal separation. In these cases where the defendant does not file the answer, the procedure to be followed by the court is this, the court must require the prosecutor to intervene and determine whether there was collusion between and among the parties, and that if such prosecutor finds that there was no such collusions, to direct the prosecutor to intervene for the purpose of seeing t it that the evidence of the plaintiff they adduced is not manufactured or a product of a concoction, the fiscal should determine. Where there are two or more defendants, some of whom answered and some do not, but the cause of action against the defendants is common to all, meaning, the complaint alleges the cause of action common to all the defendants. Q. What procedure should the court follow in determining the case? Example: A vs. B, C and D. A has a cause of action against B, C, and D. The cause of action is common to all. Only B answered. Q. How will the court proceed to try the case? Is C and D declared in default? Yes. A. Trial… Q. Does this mean therefore that the trial will no longer affect C and D? A. The Rule is, the court will try the case on the basis of the answer filed by B. The answer filed by B inures to the benefit of C and D. It is as if this answer filed by B was filed not only for B but also for C and D.

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This means to say therefore, that a judgment rendered binds all the defendants. So, if B wins for instance, C and D might also win. If B looses, C and D also loose. This rule, however, presuppose that the action of A is against all these defendants is common to them. So, you can declare C and D in default for their failure to file the answer but the case shall be rendered against them on the basis of B’s answer. This is the essence of Rule 9. Rule 10 : Amended Pleadings Amendment may be a matter of right or not a matter of right, one that is rest on the discretion of the court. Amendment may also be of substantial matter or only on formal matters Q. What are the rules of amendment? A. They are as follows:

At any time before a responsive leading has been filed, the plaintiff may file an amendment pleading once, as a matter of right. Meaning, the plaintiff does not have to get a prior authority from the court to amend. He can amend
without getting a court order authorizing him to amend.

The plaintiff A filed his complaint against B on Dec. 1, 1998. The defendant B was summoned on Dec. 7, 1998. So, he has a period ending Dec. 22,1998 within which to file the answer in conformity of Sec. 1 Rule 11. Sec. 1 Rule 11 The defendant shall file his answer to the complaint within fifteen (15) days after service of summons, unless a different period is fixed by court. Let us say that B filed the answer on Dec. 20 but served the copy of the answer on A on Dec. 22, 1998. On Dec. 21, however, A now filed any motion authorizing him to amend his complaint. So, there was no order for A to amend. B moved that this amended complaint be stricken off the record on the ground that its filing was not authorized because A did not have the authority of the counsel to amend. Q. Is the motion to strike by B, legally proper? A. No. When A file the amended complaint on Dec. 21, the answer of B which was filed on Dec. 20 was not yet served on A. It was served only on Dec. 22. The rule is, ―at any time before a responsive pleading is served, the party filing the pleading can amend once, as a matter of right.‖ The right can be exercised only once, not twice. When the amended complaint was filed on Dec. 21, it is a matter of right, meaning it can be exercise without a court order. When the answer of B was already filed a day ahead or on Dec. 20. But because the rule is very clear, there is a difference between filing and serving under Rule 13, and under Rule 10, the starting point of the right to amend a pleading is not the date of filing but the date of serving a copy of the pleading to the adverse party. The rule says, the right to amend before the responsive pleading is served can be exercised only once. When a party therefore seeks to amend for the second or subsequent times, his pleading, he can no longer do so as a matter of right. For him to amend again for the second time or any subsequent time, he must obtain prior leave of court. Illustration: January 10, 1999 A examined his amended complaint and found some deficiencies thereunder which he now wanted to correct. And so the only way for his correction would be to file a second amendment complaint. Let us say that the last day for B to file his answer to this amended complaint is January 15, 1999. B here filed his answer on January 13, 1999 and served A a copy of the answer on January 15, 1999. A filed his second amended complaint without leave of court. Q. Could A validly file without leave of court that second amended complaint? A. No. Q. Why could A not since the answer for the amended complaint was not yet served on him when he filed his second amended complaint? A. Because the right to amend without leave of court can be exercised only once. Q. Give us the instances when the pleading may be amended to conform with the Evidence? Sec. 5 Rule 10

When issues raised by the pleadings are tried with the expressed or implied consent of the parties they shall be treated in all respects as if they had been raised in the pleadings. Such amendments of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment: but failure to amend does not affect the result of the trial of these issues. If evidence is

Q. on the part of A that issue of payment can be resolved by the court with or without the amendment of the pleading. B now introduces his evidence of payment. 3) amendment to cure a premature or non-existing cause of action. A adduced evidence showing that there was no payment. So. Supposing the court did not order the amendment. In order to justify the court ruling or deciding what is allowed to do under Rule 10? A. you are limited of proving only which you have alleged. A may now be allowed to amend his complaint to allege non-payment to conform to the evidence. B said that he already paid. He likewise denies that he was asked to pay A. Q. the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The complaint of A. defense or theory of the case is changed. Yes. he alleged among others that he gave a loan to B. So. Nothing was said in the answer of B that he paid. RENE NOTES: * When the complaint is amended. B refused to pay. No. However. During the trial A presented his evidence and the allegations. whether the pleadings have been amended or not to conform with the evidence. Q. then the new allegedly cause of action is deemed commenced upon the filing of the amended complaint. he raised the following: 1) the action has already prescribed. B here will be allowed to amend the answer to allege therein payment. In addition. On the contrary. when B tried to prove this. May the court now in deciding the case consider the evidence of payment under this rule on amendments of pleadings to conform to the evidence? A. However. 2) amendment is intended to confer jurisdiction to the court.objected to at the trial on the ground that it is not within the issues made by the pleadings. 2) If the amended complaint alleges a new cause of action. This is the only defense that B alleged. then this payment cannot be proven. Provided of course that. Demands notwithstanding. The court may. he now tries to prove payment. ―you cannot prove what you have not allege‖. that is disputed. the court can still rule on the issue that was impliedly or expressly agreed upon to be tried by the parties. under the ordinary rules of pleading particularly under Rule 13 there having been no issue raised in the pleading with respect to payment. no demand whatsoever having made. the court believes that presentation of evidence on this issue of payment will be served the merits of the case or in the language of the law. our rule here. 2 situations may arise: 1) If the complaint merely corrects or modifies the original complaint. A did not object. B. the non-amendment of the pleading will not justify the court from refusing to resolve this issue of payment. 2) ordering B to pay damages to A. B presented his evidence to prove his denial. If there was already evidence of payment because there was objection in this case. It can consider it although there was no issue. Is payment an issue? A. The court will say B is allowed to prove and if A cannot show that the reception of the evidence of payment would prejudice him. He now tries to prove prescription. In other words. The rule is you cannot prove a defense not alleged. The prayer of A is that judgment be rendered: 1) ordering B to pay A the amount loaned. Can it pass on the issue of payment? A. Example: A vs. 2) when an issue not raised in the pleading or in the pre-trial order to be proven by a party and objected to be tried if the presentation of the merits of the case and substantial ends of justice are subserved thereby. 24 There are two situations where a pleading may be amended to conform to the evidence: Instances when pleadings may be amended to conform to the evidence 1) when issues not raised in the pleading or in the trial order are tried expressly or implicitly with the consent of the parties thereto. The answer of B that he denies that he obtained from A. Because it was not raised in the pleading. the ends of justice are subserved by the amendments. As B’s defenses. A objected on the ground that there was no allegation of payment under the cardinal rule on pleading. On the other hand. The rule is. The court may now order A and B to amend their respective pleadings to conform to the evidence on payment. The loan is already overdue. So. then the action is deemed commenced upon the filing of the original complaint. 4) amendment for purposes of delay . Q. * Instances when amendment by leave of court not allowed: 1) when cause of action.

A’s prayer is that MERALCO be ordered to return to him the amount he paid. so MERALCO now threatened to carry out its original desire of cutting of the electricity. as the term suggest. A now filed an urgent motion asking the court to resolve the application for restraining order. 1995 A sued B the MERALCO in an action to enjoin it from cutting off the electrical connection of A. It is no longer legally a part of the record although it is there. it does not supersedes. he could have allege only facts that occurred before or until Dec. After he filed the complaint. 1 or before that. Q. Example: Dec. To avoid the cutting of the electricity. 1. Q. He does not know what is tomorrow. permit him to serve a supplemental pleading setting forth transactions. he paid under protest. 6 Rule 10 Upon motion of a party the court may. occurrences or events which have happened since the date of the pleading sought to be supplemented. No. Because this matter could not have been alleged on Dec. Q. the moment this is filed and this is accepted. the MERALCO. Why supplemental? A. Q. but which A forgot to allege and which facts are material to his case. How about a supplemental pleading? A. What happened here? A. 1. 1. Does he have to file a separate complaint to recover what he paid? A.1. to supplement or to add to the original pleading. electricity to avoid the cutting of the electricity. Yes. a supplemental pleading does not put out of existence the original pleading. A prayed that a restraining order be issued while the case is going on. He could not have ascertained in that complaint of his dated Dec. For obvious reasons. Q. It is merely an additional. Supposing there were facts already existing on Dec. So that when a supplemental pleading is filed. What he can do is file supplemental pleading alleging therein what happened. in the example. 1996. 1996 and A wants to aver this in a supplemental pleading. B. You will notice that the supplemental pleading is intended. he could not have set forth that fact because it did not have occurred when he filed the original complaint. The adverse party may plead thereto within ten (10) days form notice of the order admitting the supplemental pleading. Unlike the amendment pleading. 1995. Can he change his pleadings? How? A. It is there. you cannot allege facts not yet existing at the time the pleading is filed. Could he pray for that in his original complaint? A. A paid under protest. 1. alleged that A stole electricity by installing in its electrical connections a jumper. the court denied his application for TRO. The event which is that electricity passing through the jumper is not recorded in the meter amounting to thousand of pesos. 1. It is non-existent. upon reasonable notice and upon such terms are just. A supplemental pleading is one embodying therein occurrences. . MERALCO now threatened to cutoff his. You can physically see it but legally you are blind to it because an amended pleading supersedes the original pleading. 1995 because it did not yet occurred. So. When A file this case on Dec. Q. 1.25 Supplemental Pleading Sec. Why? Because he is not Nostradamus. Q.1995 facts which would have occurred Dec. the original pleading or complaint ceases to exist. What is a supplemental pleading? A. there are actually two pleadings now. which supersedes the original pleading. the original pleading and the supplemental pleading. where the suppose offer of B to settle was made on Dec. 1995. The contention of A is that he did not steal it. facts and events that transpired after the original pleading was filed. and therefore he is now entitled to the return of his money. but legally it is not there. Q. So. Example: A vs. What is now A’s prayer? A. by amended pleading to incorporate therein facts already existing at the time of the filing of the pleading or at the time before the pleading is filed. Example: In an amended pleading of B. The court denied the TRO. B.

the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion. If the pleading is ordered to be amended. Marte as his counsel. The court furnishes B with a copy of supplemental pleading of A. etc. 60 days if done thru extraterritorial service 2) Counterclaim – 10 days form service 3) Cross-Claim . the failure of the party to answer is not a ground to declare him in default.10 days form service 4) Third Party Complaint – 15 days after service of summons 5) A Complaint-in-Intervention – 15 days form notice of the order admitting it 6) Answer-in a case where the motion to dismiss it is denied – balance of period required but not less than 5 days from receipt of notice of denial 7)Bill of particulars-within 10 days from the notice of the order 8)Supplemental pleading. unless a different period is fixed by the court. so the motion now carries the copy of the supplemental pleading a complaint.26 A supplemental pleading should be answered. unless a different period is fixed by the court.. A now furnished B. B now engaged Atty. Sec.) party complaint shall be governed by the same rule as the answer to the complaint. 1 Rule 11 Complaint The defendant shall file his answer to the complaint within fifteen (15) days after service of summons. Q. Q. When should it be answered? A. 6 Rule 11 (Third-Party Complaint) The time to answer a third (fourth. * always with leave of court Effects of Amendment Pleading (a) Admissions in the superseded pleading can still be received in evidence against the pleader. A supplemental pleading should be answered within ten (10) days from the notice of the order admitting supplemental pleading. Give us the period within which a pleading may be answered: 1) Complaint – 15 days after service of summons: 30 if foreign corp. when a motion is filed. the pleadings sought to be admitted are already attached to the motion. 4 Rule 15 (Complaint in Intervention) The complaint of intervention shall be filed within fifteen (15) days from notice of the order admitting the same. What legal procedure are you (Vanny) allowed to involve in order that this motion of A to declare your client in default may be thwarted? A. A now filed a motion to declare him in default with respect to the supplemental pleading. did not file the answer to the supplemental pleading. when B received the order admitting the pleading of A. 4 Rule 11 (Counter-claim and Cross-claim) A Counter-claim or cross-claim must be answered within ten (10) days from service Sec. he shall file his answer . That is why. completed from his receipt of the notice of the denial. Q. the ten (10) day period is counted from the receipt of the order admitting the supplemental pleading. Why? Because the answer he already filed to the original complaint serves as his answer to supplemental pleading. RENE NOTES: AMENDED PLEADING * refers to facts existing at the time of the commencement of the action. Sec. RULE 11:WHEN TO FILE RESPONSIVE PLEADINGS Q. 4 Rule 16 (Motion to Dismiss) If the motion is denied. What would be the basis now of B in filing the answer to the supplemental pleading? How would B know the contents of the supplemental pleading? A. Sec. * take the place of the original pleading * can be made as a matter of right as when no responsive pleading has yet been filed SUPPLEMENTAL PLEADING * refers to facts arising after the filing of the original pleading.within 10 days from service Sec. * taken together with the original pleading. (b) Claims or defenses alleged therein but not incorporated or reiterated in the amended pleading are deemed waived. but not less than five (5) days in any event. Under Rule 15. B in this example. While it is true that the rule require a supplemental pleading to be answered. he already had with him a copy.

sending a copy thereof on the adverse party. * If the filing of an amended complaint is not a matter of right.27 within the period prescribed by Rule 11 counted from service of the amended pleading. unless the court provides a longer period. when the bill of particulars was filed. then leave of court is required. Cross-claim must be answered within ten (10) days from service of this cross-claim to the proper party answering is the cross-defendant.But in no event should the period be less than five (5) days. the 10-day period to answer runs from notice of the court order granting the same. Within fifteen (15) days from service of summons to the defendant. Pleadings to be amended shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. In a case of a complaint which was the subject of a motion to dismiss which was denied. In a case of a bill of particulars where the motion was denied or where the motion is granted. Q. What is the period to file the answer? A. The court may grant the continuance to enable the amendments to be made. the compliance therewith must be effected within ten (10) days from notice of the order. Q. the defendant whose motion for bill of particulars. the period within which the defendant must file the answer would be the balance of the 15-days period within which he should have filed the answer but in no event less than five (5) days. Sec. when should it be answered? A. In the case of a bill of particulars. *If no new answer is filed by the defendant in case an amendment has been made after he has filed his answer. * If the filing of an amended complaint is a matter of right. . the answer must be filed within ten (10) days from service of the notice admitting the supplemental pleading. Within what period must it file its answer? A. cannot be declared in default. They may extend the time to file the pleadings but may not shorten them. In the case of the supplemental pleading. 2 Rule 11 Where the defendant is a foreign private judicial entity and service of summons is made on the government official designated by law to receive the same. The defendant has a period representing the balance of the original period he has. How about a counter-claim. the 15-day period to answer is counted from the service of the amended complaint. the answer shall be filed within thirty (30) days after receipt of summons by such entity. Within ten (10) days from service of the counter-claim on the defendant with respect to the counter-claim. The bill of particulars or a more definite statement ordered by the court may be filed either in a separate or in an amended pleading. Where the defendant is a foreign corporation doing business in the Philippines. Q. A third-party complaint or a fourth-party complaint or any complaint for that matter must be answered within fifteen (15) days from service of the summons. Q. the original answer of the defendant may serve as the answer to the amended complaint and hence. How about the cross-claim? A. unless a different period is fixed by the court. either in whole or in part. within what period should it be answered? A. The defendant in a counter-claim is the plaintiff. is denied or where the bill of particulars was granted. Complaint in intervention must be answered within fifteen (15) days from receipt by the defendants in intervention of the order admitting the complaint-in intervention. 3 Rule 12 Bill of Particulars If the motion is granted. Complaint. RENE NOTES: * The granting of additional time to the defendant to file an answer is a matter largely addressed to the sound discretion of the court. Sec. hence. Q.

You want that land to be identified. You are B. but in no event should the period be less than five (5) days. the defendant may not possibly be in a position to file an answer. the court may order the stricking out of the pleading to which the motion for bill of particulars refers. 1999. If you were B. 10. 1999 within which to file the answer. This being so. Q. he has still five (5) day period until Jan. therefore he has eight (8) days. 18. 1999. Should A be directed by the court to file a bill of particulars. 9. so you file a motion to require A to submit a bill of particulars. Q. area etc. Or the court under Sec. So what are you allowed to do before you file the answer? A. 15. but never shortened. at the time he filed the motion. What is the concept of Bill of Particulars? A. 1999. So. What are the sanctions against the failure of the plaintiff to comply with the order of the court directing him to file a bill of particulars? A. Q. Therefore. the period for the filing of the answer is suspended. . It starts to run again when a motion for Bill of Particulars is denied and the defendant received a copy of the order of denial or it starts to run again when. So the purpose therefore is to clarify an ambiguity in order to answer the complaint intelligently. 1999 and therefore he has already consumed thirteen days of the original 15 days period. if the court does not fix the period within which A must file the bill. if B filed a motion for a bill of particulars on Jan. When a motion for Bill of Particulars is filed. so that when he filed the motion for a bill of particulars. because unless you know the lot A talking about. for a number of years until B ejected him (A) therfrom. In an action for recovery. but in no event should the period be less than ten (10) days. Why not Jan. the identity of the property must be stated. 10. So. after the motion has been granted. When may a motion for Bill of Particulars be filed? A. What is the purpose in asking the court to order A to submit a bill of particulars? A. you cannot possibly file an intelligent answer. B received the summons on Jan. B can file a motion to require A to submit a Bill of Particulars. ―in no event shall the period be less than five (5) days. So the owner itself requires that the identity by its boundaries (technical description). 1999 the order denying the motion or he received on this day a copy of a bill of particulars submitted by A. Example: This is an action filed by A against B for recovery of a lot. is.‖ Q. A should have described in his complaint the boundaries. he already consumed seven (7) days of the original 15-day period. Q. 3 Rule 17 may dismiss the action for failure to comply with an order. The complaint or a pleading may be vague or ambiguous. Your purpose is to allow you to properly file your answer. 1999. of the lot in question. because that is the balance to which he is entitled to at that time? A.28 Rule 12: Bill of Particulars Q. 10. he has a remedy to secure from the plaintiff a clear allegation of the facts. unless you know the description of this lot A is talking about. In this example. 2. Q. Before he files the answer. Within what period should an answer be filed following the denial of the motion or following the receipt of the Bill of Particulars? The rule says that: The defendant is entitled to the balance of the period he was entitled to. That period cannot be shortened. If B received on Jan. 1999. The sanctions against the failure of a party plaintiff to file the bill of particulars when ordered by the court. do you know what is this lot in QC? A. within the period of the filing of the pleading. it can be extended. When he received the order of denial on Jan. the plaintiff has filed a motion for Bill of Particulars and the defendant receives a copy of the Bill of Particulars. consequently he has only two (2) receiving days. At any time within the period for the filing of the answer. 15. Which he has always been in possession of. 1999. What is the effect of the filing of the motion for Bill of Particulars on the running of the period of the filing of the answer? A. What does it starts to run again? A. He filed a motion for a Bill of Particulars on Jan. Q. B has eight(8) days counted from Jan. 12. The allegation in the complaint alleges that A is the owner of the lot in QC. his last day for the filing of the answer would be on Jan. Because the rule says. he received on this day a copy of a bill of particulars. the defendant considers as vague. Q. it is understood that he has a 10-day period. A filed the action against B. if for instance. So. he must do so within the period fixed in the order. On the other hand.

not ordinary mail Example: Suppose a pleading is filed by JRS Express or LBC Jan. the clerk of court should refer the motion immediately to the court. B in Batanes. B cannot serve a copy of the motion to A because the office of A is not known. It can never be done by ordinary mail. B 1) A resides in Sulu. So he has to notify A of the motion. but there is none in Batanes.29 Under the old rules. you do not know where he is. then a copy of the pleading can be served only by ordinary mail. Where a party wants to serve a copy of his pleading or other papers. 1. How about final order. Example: A vs. But when it is a registered mail. How can he be served? The party serving must serve his pleading or other papers on the clerk of court by proving to the clerk of court. unless the court desires that that motion be heard with due notice with the adverse party. Service can be effected by ordinary mail. He cannot be furnished by mail (registered or ordinary). he cannot be served by registered mail or by ordinary mail. ―failure to serve personally or by mail. 1998. there is a record or whether it is a personal service. 2) There is a registered service in Sulu. His residence is not known also. But in the case of ordinary mail. . 15. 15. Where one counsel appears for several parties. for the simple reason that. his residence is not known. Reason: There is such a thing as a period of appeal or for the performance of some legal acts. 3) There is a registered service in Sulu. the court can resolve the motion for a bill of particulars ex parte or with notice to the adverse party.‖ Example: B files a motion (this is litigated). there is a record. Rule 13: Service and Filing of Pleadings Q. Why? There is no record. the office the adverse party is not known. the court must set for hearing a motion for bill of particulars. Q. he shall only be entitled to one copy of any paper served upon him by the opposite side. The hearing is set on Dec. Under the new rules. In Sulu. service upon him shall be made upon his counsel or one of them. 2 Rule 13 Filing is the act of presenting the pleading or other paper to the clerk of court. Give the desticntions between Service and Filing. This is why we have a provision that upon the filing of a motion for bill of particulars. There must be a definite starting point Where the service is by ordinary mail. let us say. Filing (Manner) 1) personally to clerk of court 2) registered mail. the answer may be stricken off the records and the defendant be declared in default upon the motion of the plaintiff. if B cannot prove that he served a copy of his motion to A. and there is also a registered mail service in Batanes. 1990 – the pleading was delivered to JRS Express Jan. A. Sec. Service is the act of providing a party with a copy of the pleading or paper concerned. the hearing on Dec. So. service can be done only by registered mail Q. there is none. judgment. either by personal service or by registered mail for that matter. unless service upon the party himself is ordered by the court. a motion for a bill of particular was a litigated motion because thereunder. which is the date it is delivered and received by the clerk of court and not on the date of deposit to JRS Express. how can they be served ? 1) Only by personal service and 2) By registered mail. This is no longer the case. 10. 1990 – JRS Express delivered it to the court The date it is considered filed is on Jan. resolution. RENE NOTES: * If the defendant files an answer but fails to obey an order relating to a bill of particulars or in case of insufficient compliance thereof. how can such pleading or other papers be served? (You cannot serve it personally because. because a litigated motion cannot be resolved by the court unless there is proof of service of a copy thereof to the adverse party. 1998 cannot proceed because this is a litigated motion. If any party has appeared by counsel. 10. there will be no definite starting point for the period to appeal or to that other legal acts. there is no registered mail service.

1. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing. you serve personally. What rule will apply if we now consider that he received it legally and physically on Dec. Q. 20. this motion can be heard on Dec. Q. Effective June 1. 20. B withdrew this mail on Dec. B in opposing this motion of A argued that he (B) actually received from the mail on Dec. B has to prove that B could not serve it on A’s office or residence either personally or by mail. This sec. When is service by registered mail deemed complete? A. he has deemed to have receive it when he physically received it on Dec. CA# 3200 August 5. Therefore. B is deemed to have received the copy of the decision on Dec. Service by registered mail. This is a remedy which does not appear to be appreciated – by many lawyers. 20? A. when it was filed on Jan. 11 Rule 13 Whenever practicable. 10. the service is deemed complete upon actual receipt. Jan. 10 of Rule 13. 5. And since he has only a 15 day period from Dec. 20. B filed a notice of appeal on Jan. 20. although he physically received it on Dec. whichever date is earlier. per Sec. 290 SCRA 605. But of course. B received it on Dec. On the other hand. 10 Rule 13 Emphasis on Last sentence Personal service is complete upon actual delivery. So the motion of A is not legally tenable. 11 Rule 13? A. the service is deemed complete upon the expiration of five (5) days from the first notice. 1998. 1998. 1998. 5. A contented that under Rule 13. there must be an accompanying explanation why the pleading was served by means other than personal service. within the fifteen (15) days period for the filing of the notice on appeal. RENE NOTES: * Modes of Service A. 1998? A. 20. The service on the clerk of court on that day it was served to him is equivalent to a service of to B. then you have to state why you furnish by means other than personal service. or after five (5) days from the date he received the first notice of the postmaster. What would be the correct ruling on the motion of A? A. A now filed a motion to dismiss the appeal on the ground that it was filed late beyond the reglementery period. So. 1999. 1998 the judgment. unless the court otherwise provides. 1998. If you do not serve personally.30 Q. So whenever you serve. the service and filing of pleadings and other papers shall be done personally. 1998. So. 1999. this period expired on Dec. and there is no accompanying explanation of this. 1998. 1998. but if there is a first notice and the mail is not received within five (5) days from first notice. B was deemed to have received it legally five (5) days after Dec. Sec. Q. Service by registered mail is complete upon receipt by the addressee. B has a period of 15 days counted from Dec. 4. 20 in which case the appeal on Jan. 4. 1998 a notice to the effect that this mail is pending in the post office. 1998 within which to file the notice of appeal. within which to file his notice of appeal and the last day of this 15-day period is Jan. JUDGMENTS. FINAL ORDERS AND RESOLUTIONS (a) By personal service. 1999. Priority in the Service of Pleadings – Personal Service Pleadings and other papers should be served whenever practicable by personal service. to the addressee. A copy of that decision was sent to him by registered mail on Dec. 1998 not on Dec. then this pleading is deemed not to have been filed. 20. Example: A vs. 4 was deemed complied. 11 Rule 13 is mandatory and this is exemplified in the case of Solar Theme Entertainment Inc. Therefore. 5. An omission of this explanation is fatal because this pleading shall be considered as not having been filed. What is the remedy available to B even if A was not personally served with the notice of the motion. 1998. When a pleading is served other than personal service. Q. 5. Sec. For purposes therefore of the appeal. 10. If there was no notice from the postmaster that he has a pending mail. 16 days already passed. 1999 after receiving the copy of this notice of appeal of B. 1998. What will be the effect of failure to comply with Sec. 1998. or (b) By service by mail. the 15-day period is counted from Dec. Except with respect to papers emanating from the court. 5. Where service other than personal is resorted to. (c) By service by publication. The postmaster sent to B on Dec. in the absence of a notice given by a postmaster. All that B does is to serve a copy of his motion to the clerk of court. registered or ordinary. So. 5. 5. B. A judgment was rendered against B. if party is summoned by publication and . this rule must be strictly followed. vs.

3. the court cannot validly render a judgment in the case. and 6 p.They can be served only under the three modes. So. with a person of sufficient age and discretion residing therein – if no person found in his office. or (b) After 5 days from the date he received the first notice of the postmaster. There are four (4) means: Personal service – which is preferred. 1. Q. (b) With proof of failure of both personal and service by mail. or if he has no office. Service by ordinary mail: Complete upon expiration of 10 days after mailing. * . at the party’s or counsel’s residence. The court cannot render judgment against on accused who has not been brought under its jurisdiction. The purpose of the summons therefore is. Service by registered mail: (a) Complete upon actual receipt by the addressee. How is summons served? A. If it is not in the record. Q. personal service (a) Delivering personally a copy to the party or his counsel or. whichever date is earlier. 2.3) service by publication or4) by any other means which the court finds it proper.by handing a copy to defendant. Summons is intended to vest in the court the jurisdiction over the person of the defendant. This is similar in the case of an accused who has not been arrested and has not been arraigned. or .tendering him a copy if he refuses . service by mail (a) If no registry service is available in the locality. 1 Rule 16 includes in its enumeration grounds of a motion to dismiss the fact that the court has not acquired jurisdiction over the person of the defendant. the court cannot validly render judgment. . of either sender or addresses. PLEADINGS 1.complete upon actual delivery 2. to confer to the court jurisdiction over his (defendant) person. (c) Leaving the copy between 8 a. What is the purpose of summons? A.m. Summons is served either by 1) personal service: 2)by substituted service. service may be done by ordinary mail. is the fact that Sec. final order or resolution. Completeness of a Service 1. when the court has no jurisdiction over the person of the defendant. or (c) Affidavit of the party serving Rule 14: Summons Summons is the compulsory process issued by the court notifying the defendant that a case been filed against him and requiring him to file the answer within the period stated in the summons with a warning that should he fail to answer within the reglementary period. Proof of Service * Proof of personal service: (a) Written admission of the party served. a judgment may be rendered against him on the basis of the evidence that the plaintiff may advance.31 has failed to appear in the action. judgment.They CANNOT be served by substituted service. .if filed personally: proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same. Just to show you that the jurisdiction of a court to the person of the defendant is a must. if known. Proof of Filing * Filing is proved by its existence in the record of the case. Personal Service . and: .m. (b) Leaving a copy in counsel’s office with his clerk or with a person having charge thereof or. B. or if his office is unknown. or . unless the court provides otherwise.if filed by registered mail: proved by – (a) the registry receipt and (b) The affidavit of the person who did the mailing. or (b) Official return of the server. Unless a defendant is within the jurisdiction of the court.

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Q. What does personal service consist? A. It consist of actually giving to the defendant a copy of the summons, the complaint and all other documents accompanying the complaint. Q. Supposing the defendant said, ―Ayaw ko, I will not receive,‖ the person serving it kick it towards the defendant, is it served? A. Yes, even though the defendant did not sign. Whether he signs or not in the acknowledgment of his receipt of the summons, he’s deemed to have already been served. If you cannot serve it to him personally because you cannot find him in the place where you thought you could find him. Then you resort to a substituted service. Q. In what way may substituted service be effected? A. The sheriff or process server must leave the summons, the complaint and all the other documents attached thereto with a person living in the house of the defendant. Q. With any person? A. No, only a person of sufficient age and discretion. Q. So, the process server goes to the house of the defendant but does not find the defendant there because he is out but finds a neighbor who is visiting in that house and leaves the summons with the visitor, is there a valid substituted service? A. No, because that visitor is not a person living in that house. You go the house of the defendant, nobody is there. Then you go to his office, if the defendant is not there, leave that summons with the person in charge of the office. Q. What is the jurisprudence of substituted service? A. Substituted service is the interrogation of the rights of the defendant. Therefore, substituted service can be effected

only when the defendant cannot be served personally within a reasonable time.

Q. What time will it be reasonable? Supposing the sheriff or process server went to the house of the defendant once and did not find him there… Q. What is required of a sheriff or process server to do when he resorts to substituted service? A. He must state in his return of service, a return of service is the report that the server, sheriff or process server renders to the court on what he did with that summons (or sheriff’s return - other term for return of service). The server, whether he is the sheriff or the deputy sheriff or the process server, is required to render a report on what he did. Where the service is substituted, the sheriff, the process server or whoever was commissioned to serve it must state in his report the following: 1. the impossibility of serving the summons personally; 2. the reason for such impossibility; 3. how the summons was effected; meaning therein the particulars such as the date of service, on whom it was served and how it was served. Unless all this data appear on the return, the substituted service is null. Q. When may summons by publication be effected? A. In the following cases, summons by publication may be effected: 1. where the defendant is sued as an unknown defendant; 2. where the whereabouts of the defendant is unknown; they could not be ascertained notwithstanding diligence in ascertaining such whereabouts; 3. when the defendant is a resident defendant but is temporarily out of the Philippines; 4. when the defendant is a non-resident defendant and the actions against him be any of the following: a. an action which involves the personal status of the plaintiff; b. the subject matter of the suit is real property

The reliefs prayed for respecting the real property are as follows: 1. to exclude the defendant from any claim that he may have over that property; or 2. where the property is a property of the defendant and this property has been attached. Q. How may a non-resident defendant be summoned when the case against him is any of the case above-mentioned (action involving the civil status of the plaintiff or an action involving real property in the plaintiff? A. There are several ways of serving: 1. by personal service This means to say that the court in the Philippines can send somebody abroad to serve personally the summons.

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2. by publication in a newspaper of general circulation for such period of time that the court may deem proper. But in this case, a copy of summons and the complaint and all the other papers attached to the complaint must be sent by registered mail to the last known address of the defendant. 3. by any means that the court may find proper. In the Cariaga vs. Malaya case, the then Judge Antonio Malaya of CFI Manila ordered the defendant residing in USA summoned by registered mail. The defendants received the registered summons. So they file a motion to dismiss the complaint on the ground of lack of jurisdiction of the court over their persons. They argued that the summons effected then by means of registered mail was not a valid summons. They contented, in short, that summons cannot be served by registered mail. Supreme Court overruled this contention. Supreme Court holding that under Sec. 15 of Rule 14, service of a summons by registered mail is covered by the phrase, ―any other means that the court may find proper.‖ In the case of a foreign corporation doing business in the Philippines, the period depends on whom was the summons served. If the summons was served on its agent or representative in the Philippines, the period is fifteen days. If on the other hand, the summons was served on a government officer, the defendant has a period of thirty (30) days from receipt of the summons within which to file an answer. Where a defendant is summoned under Rule 14 under Sec. 15 thereof, the defendant has a period of sixty (60) days from notice within which to file the answer. Sec. 15 Rule 14

When the defendant does not reside and is not found in the Philippines and the action affects the personal status of the plaintiff or relates to, or the subject matter of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or on which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of a general circulation in such places and for such time as the court may order, in which case, a copy of summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer.

RENE NOTES: * Where the defendant has already been served with summons on the original complaint, no further summons is required on the amended complaint IF it does not introduce new causes of action. * BUT where the defendant was declared in default to the original complaint and the plaintiff subsequently filed an amended complaint, new summons must be served on the defendant on the amended complaint, as the original complaint was deemed withdrawn upon such amendment. * Service of Summons on Different Entities A. SERVICE ON ENTITY WITHOUT JURIDICAL PERSONALITY B. SERVICE UPON MINORS AND INCOMPETENTS upon any or all defendants being sued under common name; or person in charge of office serve personally and on guardian or any person exercising parental authority over him; in case of minors: by serving upon the minor, regardless of age, AND upon his legal guardian, or also upon either of his parents. In case of incompetents: by serving on him personally AND upon his legal guardian, but not upon his parents, unless when they are his legal guardians IN ANY EVENT, if the minor or incompetent has no legal guardian, the plaintiff must obtain the appointment of a guardian ad item for him. Serve an officer having management of the jail or prison To the president, managing partner, general manager, corporate secretary, treasurer or in-house counsel Service upon a person other than those mentioned is invalid and does not bind the corporation. Serve on (15) resident agent; or if none; Gov’t official (30) designated by law; or On any officer or agent of the corporation within the Philippines In case defendant is the Republic of the Philippines – by serving upon the Solicitor General In case of a province, city or municipality, or like public

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C. SERVICE UPON PRISONER D. SERVICE UPON DOMESTIC PRIVATE JURIDICAL ENTITY E. SERVICE UPON FOREIGN PRIVATE JURIDICAL ENTITY F. SERVICE UPON PUBLIC CORPORATIONS

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G. EXTRA-TERRITORIAL SERVICE corporations – by serving on its executive head, or on such other officer or officers as the law or the court may direct. 1. Requisites a) defendant does not reside or is not found within the Philippines b) the action either: * affects the status of the plaintiff; * relates to or the subject of which is property within the Philippines on which defendant has a lien or interest; * demands a relief which consists wholly or in part in excluding the defendant from any interest in any property within the Philippines; * property of defendant has been attached to the Philippines 2. Mode of Service a) with leave of court served outside the Phil. By personal service; or b) with leave of court served by publication in a newspaper of general circulation, in which case copy of the summons and order of court must also be sent by registered mail to the last known address of defendant; or c) any other manner the court deem sufficient. Substituted service or with leave of court, personal service out of the Philippines as under extraterritorial service.

H. SERVICE UPON RESIDENT TEMPORARILY OUT OF THE PHILIPPINES

* Where the defendant is a resident and the action is personam, summons by publication is invalid as being violative of the due process clause. * Any form of appearance in court, by the defendant, by his agent authorized to do so, or by attorney, is equivalent to service except WHERE such appearance is precisely to object to the jurisdiction o the court over the person of the defendant. * Inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant5 shall not bee deemed a voluntary appearance. Rule 15: Motions

Motion is defined as an application for a relief not embodied in the pleading.
Q. What are pleadings? A. They are the complaint, counterclaim, cross-claim, third party complaint, complaint in intervention, or answer Sec. 1 Rule 15

A motion is an application for relief other than by a pleading.

Example: A vs. B. You have a complaint then an answer and after trial you have the judgment or decision. The relief prayed for by A is that a judgment be rendered against B declaring A owner of the land and ordering B to turn over to A the possession of the land, ordering B to pay him damages. In so far as B is concerned, the relief prayed for by B is the dismissal of the complaint of A. A prayed that he (B) declared the owner of the land. May either of the parties secures any relief other than a judgment, between the tie this case is pending and times this case is decided. A. Yes, in between the course of the proceedings, there be many relief a party may prayed for but not a judgment. There are many incidents while a case is pending, incidents in connection with which a party may want to secure a particular relief. Example: A vs. B. After this complaint was filed on Jan. 2, 1999, B now files a motion to dismiss. Q. What does B want as a relief? A. Dismissal of the complaint. Q. Will there be a trial on the merits of the case when this case will be dismissed/ A. None. Example:

Meaning. and that is a motion for summary judgment. Litigated motion A non-litigated motion is one. No. the plaintiff have the right to resist this motion such that if he has. the period for the filing of responsive pleading is shortened. if you want the pleading to be admitted. no more. and if the court hears it. 11. Is the action of the court in resolving the motions without giving notice to A proper? A. So whatever you want to get from the court. will prejudice A. you get that through a pleading called motion. the hearing is void. It could not be set Dec. under the rule on summary procedure. B files a motion to dismiss. there will be considerable delay. A the plaintiff has the right to be heard or to resist the motion and unless the motion is heard in accordance with Rule 15. if a party wanted to file a motion for the admission of an amended complaint. either A or B will file with the court a paper asking therein that this date of hearing be cancelled. 1999. the court cannot hear it. So we say that in a motion to dismiss. Why? Because a litigated motion adversely affects the right of the adverse party. he could file the amended complaint only after the court has already granted the motion. B. This is if you follow strictly the rule. Under the rule on summary judgment. The court resolves his motion to dismiss without a prior notice given. The amendment not being a matter of right so in this motion. Example: (Non-litigated Motion) B the defendant files a motion for extension of time within which to file the answer. you can obtain that only by means of a motion. without the presence of the adverse party. So. Why is it litigated? What would be the effect if the court would now grant the motion to dismiss? A. Non-Litigated motion 2. A motion for extension of this is one. So if the motion is filed Dec. So. The hearing without notice of A. Example: (Litigated Motion) A vs. Consequently. however. . What are the kinds of motions? A. Does A. etc. 1 Rule 15 defines a motion as an application for a relief not included in a pleading. you can prove that by means of a complaint. 12. counterclaim. without giving the adverse party the opportunity to object therein. you cannot set your motion for hearing earlier than ten days. Example: A vs. A motion must be set for hearing not later than ten (10) days from the date of its filing . A should already attach the copy of the amended pleading. the latest date this motion will be set for hearing is Dec. Under the new rule now. This is not proper. The advantage is this. So A or B wants the trial to be cancelled. whatever relief you want to obtain from the court before the judgment.35 Trial is set. 1998. 1. the court cannot validly act on the motion. B files a motion to amend the complaint. that party must attach to the motion the pleading desired to be admitted. It is non-litigated. When a party files a motion for the admission of a pleading. It must done so within 10 days. Where. So that if the trial was set on Jan. That is why Sec. it will not in anyway prejudice the right of A. under the old rule. because this is a litigated motion. the court cannot validly rule on the motion. attach that to your motion. Q. There are two (2) kinds of motion: 1. Why? Because you cannot incorporate in your complaint or complaints in intervention this reliefs which will not constitute a judgment on the merits of the case. Q. Q. which a court can act upon without hearing the adverse party because the adverse party does not have the right to oppose application for relief and should the court resolve this motion without hearing the adverse party is nevertheless not prejudiced. the plaintiff. because it exceeds already. It can be heard without notice of A. A. the motion should be set for hearing in such a manner that a ten 10-day period must elapse between the services of the motion to the adverse party and the date of the hearing. In other words. this motion cannot be heard unless he (A) be first notified. A may resist the motion. 24. Why? Because even though the court acts on the motion. answer. unlike the old rule. So. the motion is litigated. the motion to dismiss may be denied. which the court can resolve ex parte. Why? Because had he been notified and would have objected and his objection may be considered by the court. But if you want to obtain a judgment on the merit. There is one exception however to this rule. the plaintiff A. Q. without the previous notice on the adverse party. B. The complaint will be dismissed even without being heard. unless the adverse party is notified of the hearing of that motion. then therefore. 1998. Either A or B is not ready to go to the trial.

With respect to voluntary appearances the voluntarines of the appearance may be manifested by the filing of the pleading with which a party seeks a relief other than the dismissal of the complaint based on lack of jurisdiction of the court over the persons of the defendant. abandonment. the defendant was not validly summoned. Ex parte motions 2. extinction of claim by reason of payment. At anytime within the period for pleading but before the answer has been filed. he was sued. Litis pendentia 6. So. He prayed for the dismissal of the complaint. Rule 16: Motion to Dismiss Q. There are two (2) ways the court may acquire jurisdiction over the person of the defendant : 1. By the voluntary appearance of the defendant before the court. .36 RENE NOTES: Kinds of Motions a) Motion ex parte – made without the presence of a notification to the other party because the question generally presented is not debatable b) Motion of course – where the movant is entitled to relief or remedy sought as a matter of discretion on the part of the court c) Litigated Motion – one made with notice to the adverse party to give an opportunity to oppose d) Special motion – motion addressed to the discretion of the court General Rule: A motion cannot pray for judgment Exceptions: 1. Motions for summary judgment which must be served at least ten days before its hearing * Any motion that does not comply with sections 4. the action is barred by prescription 9. The motion was denied. lack of jurisdiction of the court over the subject matter of the case 3. the court cannot validly render a judgment. unless the court acquire jurisdiction over the person of the defendant. lack of jurisdiction of the court over the person of the defendant 2. is not entitled to judicial cognizance and does not affect any reglamentary period involved for the filing of the requisite pleading. should not be accepted for filing. however. B did not file the answer. When should a motion to dismiss be filed? A. he filed in court a motion for extension of time to file the answer. because when B filed a motion for extension of time to file the answer. Example: A sued B. Upon hearing. Grounds of Motion to Dismiss are specifically mentioned on Sec. the claim is barred by statute of fraud or barred by res judicata 8. 1 1. Q. The court granted the motion. 5 and 6 of Rule 15 is a mere scrap of paper. By so filing the motion. B was not summoned. failure to comply with certain conditions precedents With respect to jurisdiction over the person of the defendant. The plaintiff now moves that B declared in default. Motion for judgment on demurrer to evidence General Rule: 3-day notice rule-service of the copy of motions should be made in such a manner as shall ensure its receipt at least three days before the hearing Exceptions: 1. Urgent motions 3. he prayed for a relief and that is the extension of the time. and if filed. Example: B. 2. you know very well that. He nevertheless filed a motion to dismiss on the ground that the court has not acquired jurisdiction over his person. No. he voluntarily recognized the jurisdiction of the court over his person. Motions agreed upon by the parties to be heard on shorter notice or jointly submitted by the parties 4. waiver or any other ground of extinction of the obligation 7. lack of legal capacity of the plaintiff to sue 5. B opposes the motion saying that the court has not acquired jurisdiction over his erson because he was not summoned. By the issuance of the summons and its valid service on the defendant. Is the contention of B correct? A. Motion for judgment on the pleadings 2. Motion for summary judgment 3. improper venue 4. No cause of action 10.

CA affirmed the judgment of CFI against C. A suit was filed by A against B in CFI of Manila to recover an amount. Q.000. but the parties went to trial. 129 Sec. there is such a thing as ―estoppel by laches in jurisdiction‖. added other grounds such as improper venue or failure of the complaint to state the cause of action. C filed a motion for reconsideration. judgment was rendered by the trial court. because he was not validly summoned. the parties went to trial without raising the question of jurisdiction and because of the long passage of time between the rendition of the judgment and the time the motion questioning the lack of jurisdiction was raised.P. The amount sought to recover was one within the jurisdiction of the MTC. Reason: While it is true CFI has no jurisdiction to try the case. So the case was decided in favor of A. therefore a court tries a case which is not among those enumerated under the law as within the competence to try. Q. A. See B. C allowed the case to be tried as against him to enforce his liability as a surety of B. A sued B for forcible entry. . He files this in the RTC. Yes. SC ruled that because of the doctrine of estopped by laches. This is best illustrated in the case of Tijam vs. now can file a motion to dismiss. ―lack of jurisdiction of the court over subject matter of the case‖? A. Therefore. 2) the facts alleged in the complaint do not constitute a cause of action. on the ground that he was not validly summoned and therefore the court has never acquired jurisdiction over his person. we say that the court has no jurisdiction over the subject matter and therefore that is a ground to dismiss. What is meant by. No one raised the question of lack of jurisdiction of the court. He went to trial never raising the question of lack of jurisdiction of then CFI of Manila. Under the old rule. Reason: CFI of Manila did not have jurisdiction to render a judgment because the subject matter was within the jurisdiction of the MTC not the CFI. was already too long. went to CA have this appeal litigated. Jurisdiction of the court over the subject matter of the case simply means that the court has under the law the authority to decide that particular case. C is estopped already to question the lack of jurisdiction of the CFI. 19 Enumerates the cases triable by RTC Sec. but in addition to this ground he adds other grounds. Sec. 33 Enumerates the cases triable by inferior court Where. The judgment became final. A vs. he is deemed to have submitted himself to the jurisdiction of the court. C elevated the matter to the CA. Jurisdiction is conferred by law. But an action for declaration of nullity of marriage is one triable by the RTC. if a defendant files a motion to dismiss. The matter reaches the SC. This was filed in the MTC. CA denied.P. In another case. C resisted the action. Issue: Whether the judgment of CFI affirmed by CA is valid? SC ruled that the judgment is valid. Is B deemed to have voluntarily submitted himself to the jurisdiction of the court by filing this motion to dismiss? A. Let us assume in this example that B files a motion to dismiss on several grounds. When does the court not have jurisdiction but it can decide validly the case. yes Q. an action for forcible entry and detains is triable exclusively by the MTC. 129 The Judiciary Reorganization Act of 1980 as amended. The motion was denied. B. because precisely he contested the jurisdiction of the court over his person. Yes Q. This case. jurisdiction over cases involving more than P200. 33 as well as under Rule 17 and under the Rule on Summary Procedure. Denied! It was only thereafter that he now files a motion questioning the jurisdiction of the court to decide the case. the prevailing party.000. Is B here within his rights to file a motion to dismiss based on the ground of lack of jurisdiction of the court to try the case? A. B appealed to CA. Q. The amount involved is more than P200. At the time of the appeal. Blg. the court did not acquire jurisdiction over his person because no valid summons was served on him. and in addition. In addition to this ground. he also invoke the following: 1) the venue is improperly laid.37 Q. No. Sibunghanay. is lodged with SC. A by agreeing that that this appeal be litigated in CA is estopped to question the appellate jurisdiction of CA. A now contented that the appeal of B would not be entertained by CA for lack of jurisdiction of CA. C argued that jurisdiction can be raised at anytime on appeal. The judgment sought to be against C was acted as surety of B. the filing of the motion does not amount to a submission of himself to the jurisdiction of the court. where the motion to dismiss is based on lack of jurisdiction of the court over the person of the defendant. the foremost of these is that. filed a suit for declaration of nullity of marriage. Example: Under B. May there be a situation when a court does not have jurisdiction over the subject matter of the case and yet the court can validly try and decide the case? A. A. No. is B deemed to have submitted himself to the jurisdiction of the court? A. B.

B here is the movant.where the defendant alleged as defenses in his answer grounds for a motion to dismiss is granted . If in the answer he alleges as defenses the grounds for a motion to dismiss. it will receive evidence on the defenses or it may deny hearing. He can file his opposition. instead of filing a motion to dismiss. take positive stand to order amendment. without reverse order of trial under Rule 30. or lack of legal capacity. the court will resolve the case. D and E? The rule is their testimonies will be deemed reproduced automatically during the trial on the merits of the case. In our example B. If the counterclaim can subsist. This means therefore that. Therefore. Let us suppose that in the answer. Where a complaint is dismissed. the defendant may allege in his answer as defenses all the grounds of a motion to dismiss. This is the old rule. It cannot defer ruling on a motion to dismiss on the ground of the motion is not indubitable. the counterclaim is automatically dismissed. the counterclaim pleaded in the answer is not dismissed. So. This means if the complaint no longer exist. A may also adduce his evidence. the defendant files an answer.38 Here is now the motion to dismiss by B filed in this case of A. So. What becomes now the testimony of X. It is as if he filed a motion to dismiss. The dismissal is limited to the complaint. which a counterclaim is supposed to stand. if you have five (5). if you have five (5) grounds and you raised only three (3). the motion to dismiss was denied. Therefore. he filed an answer. Therefore. even though there is no longer any complaint. he may now file a motion for a preliminary hearing on the defenses.you must allege all of them. This is not now. grant the motion or deny the motion. the court have the defenses founded to be established. On the theory that a counterclaim derives its life from the complaint. So. Y and Z and A presented C. D and E. for instance. they cannot be proceeded after the motion is filed. Unless for some valid reasons the court may order the trial to be reversed. Can B prove this ground alleged in his defenses even before A presented evidence? A. Q. The court must. may B be allowed to prove his defenses even before A has proven his case? A. It is a matter governed by the discretion of the court. Let us assume however that instead of filing a motion to dismiss. the remaining two (2) are deemed waived. Under the old rules. improper venue. Let us assume in this example. Supposing the motion to dismiss was heard during which the parties presented their evidence and the motion to dismiss is denied. If the motion for preliminary hearing the evidence of A can now receive the evidence of B with respect to those defenses. What becomes the counterclaim with the dismissal of the complaint of A? A. the court could defer ruling on a motion to dismiss of the ground that the basis therefore is not indubitable. B pleaded a counterclaim against A. Q. there is no longer any legal basis. All the grounds enumerated under Rule 16 as grounds for motion to dismiss must be averred in the motion to dismiss. the case will dismissed even without A having presented his evidence. The rule is. What is the effect of the denial on the evidence of the parties adduced during the hearing of the motion? For instance. during the hearing of the motion. However. Y and Z. It is not a right of the defendant. B presented X. Q. Q. the court will grant the motion for a preliminary hearing on the defenses is a matter of discretion on the part of the court. because if you do not allege all the others already available but not raised are deemed waived. Q. The court may either order the amendment of the complaint or dismiss the complaint. it is the plaintiff who starts presenting the evidence. B after filing the answer. What is the defendant allowed to do if he files an answer with respect to the grounds of a motion to dismiss? A. Under Rule 30 on Trial. in what proceeding can it be prosecuted considering that the main case is already been dismissed? . But in this case. What are the requirements? A. Yes. it means it grants the motion to dismiss. The trial of the motion to dismiss may require the presentation of the evidence of the movant. On the strength of the omnibus motion rule. the court can grant the motion and in this case. Of course A has a right to oppose. If he dismisses. the counterclaim survives the dismissal. Q. C. which will serve as the basis of a counterclaim. B may present his evidence to support his motion. The new rule now is. Q. It is not the defendant.

the order of dismissal is res judicata. the remaining period is counted from the balance of the pleadings counted from the day he ―filed‖ the moiton. Q. Under Rule 11 Sec. But if you’re counting on the date of filing of the motion. Don’t worry. 15. that where the dismissal of complaint arising from a grant of a motion to dismiss may bar the re-filing of that case in the following cases: 1. If the motion to dismiss is granted. 1998 within which to file the answer. The motion to dismiss was denied in an order dated Jan. In other words. B served this order on Jan. Where the evidence of the parties is received in support of the motion to dismiss and/or support of the position to the motion and the motion is denied. when motion of a Bill of Particulars is denied and that the defendant is to answer. 1998 but served a copy of that motion on A on Dec. the order dismissing is not res judicata. and the trial should thereafter proceed. This is only the provision which makes the starting point ―the date of service‖. 23. the claim has been paid. 23.) But in all events. 20. but not less than five (5) days in any event. 1999. the complaint does not state the facts constituting a cause of action. he shall be granted a period representing the balance of the period following the ―service‖ of the motion. It could have meant ―filing‖ because the usual counting of the period starts from the date of filing. you count the period from Dec. So that in our example. (Judge Lagui was wondering whether this could have been an error. B was summoned Dec. This word ―service‖ could have been meant ―filing‖ because it is the usual period. the defendant was given anew 15 days from receipt of the order denying the motion to dismiss. within what period should B file the answer? A. 1999. unless the court provides a longer period . 1999. Q. within what period should the defendant filed the answer? A. 1998. Look at Rule 12. 1999 so the end would be on Jan. Evidence will be automatically reproduced as evidence of the parties during the trial of the merits of the case. 15. he shall file his answer within the period prescribed by Rule 11 counted from service of the amended pleading. The action cannot be revived. 17. Under the old rule. 23. So. B. 15. The rule is. he would have only 6 days counted from Jan. All other provision of the Rules make the ―filing‖ the basis. the same complaint may be re-filed. If the pleading is ordered to be amended. when he received the order of denial on Jan. Sec. 1998. Under the new rules. 1999. can the plaintiff re-file the case? Supposing the complaint was dismissed on the ground of improper venue. 10. 4. Would not this word ―serving‖ meant ―filing‖. On the other hand. if the ground of the motion to dismiss is other than any of these grounds already mentioned.39 A. because the law has given the defendant two (2) options: 1. he (B) can still file the answer within five (5) days from Jan. So 8 days would give you until Jan. 1. abandoned or waived or otherwise extinguished 4. not ―serving‖. the situation would be like this… Example: A vs. if we apply this rule. So. 1999. Q. 15. It becomes final. there was no day anymore left of the original 15-day period. or 2. If you apply Rule 16. 21. he had eight (8) days. he can move the counterclaim be litigated in the same case. If we apply literally this provision. the minimum is five (5). 8. B may file an independent civil case based on that counterclaim. 1998. . not the date of serving. 1999. When the motion to dismiss has been denied. This is not the rule now. You no longer count the period from the day you filed the motion to dismiss. 1998. Prescription In all these cases. depending on the ground of the motion to quash. the movant shall file his answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of ―serving‖ his motion. You count now the period from the date the motion to dismiss was served. he (B) furnished a copy on A Dec. therefore. So. irrespective of the number of days left. 15. B has a period ending Dec. What now becomes of the evidence received during the hearing? A. 17. But we have to follow because there is no reason why we should not follow. Can the case be re-filed? A. res judicata 2. Q. he was given a new period of 15 days. Q. (Judge Laggui is still wondering up to this very moment you are reading this note whethe r this word ―serving‖ would have been an error. unenforceability of the contract to the bond based on the Statute of frauds 3. He (B) filed his motion to dismiss on Dec. if that is the case. computed from his receipt of the notice of the denial. 1999 or on Jan. 4 Rule 16 If the motion is denied. Look at Sec.

This means to say that he filed a notice of dismissal for the second time. it is the dismissal of the counterclaim or cross-claim. This means that plaintiff can re-file the case. Y and Z. There are two (2) situations covered: The rule says. In Sec. However. 4. Why? Because the filing of the notice of dismissal automatically dismisses the complaint. ORDER GRANTING motion to dismiss is a final order 2. 1 contemplates a situation where the plaintiff initiates the dismissal of the action. In Sec. RENE NOTES: MOTION TO DISMISS UNDER RULE 16 * grounded on preliminary objections * may be filed by any defending party against whom a claim is asserted in the action. All that it does is to issue an order confirming the fact that the plaintiff dismissed the complaint. It means to say that. where the complaint is dismissed for the second time because of a notice of dismissal filed the second time. * may be filed only after the plaintiff has completed the presentation of his evidence. The dismissal filed for the second time produces a dismissal with prejudice. 2. When can he not re-file the case by reason by his having filed a motion of dismissal? A. * An action cannot be dismissed on the ground that the complaint is vague or indefinite. 2. How does Sec. Under the old rules. What is the effect of this notice of dismissal? A. Effect of motion to dismiss: . Q. ORDER DENYING the motion to dismiss is interlocutory Rule 17: Dismissal of Actions Q. 1. The remedy of the defendant is to move for a bill of particulars or avail of the proper mode of discovery. What are the situations covered by Sec. No. Y and Z no longer appear during the trial on the merits of the case. the plaintiff may dismiss his action by filing a notice of dismissal. he can dismiss as a matter of right without court authority. Q. 1 operate? A. In Sec.(TWO DISMISSAL RULE) Q. that anytime before an answer or a motion for summary judgment has been served on the REMEDY 1.A motion to dismiss hypothetically admits the truth of the facts alleged in the complaint. However. X. 3.40 That means to say therefore. Q. the court can consider the testimonies of X. certiorari and prohibition if there is grave abuse of discretion amounting to lack or excess of jurisdiction plaintiff. What is the action that the court must take when a notice of dismissal is filed? Will it order the dismissal of the complaint? A. The notice of dismissal produces a dismissal without prejudice. This means to say therefore that the plaintiff cannot re-file the action for the third time. When in his notice of dismissal he started that the dismissal is with prejudice. it is a dismissal of the action of the plaintiff either at the instance of the defendant or at the instance of the court. and 4? A. 1. The situations covered by Rule 17 are dismissal of a complaint or a counterclaim or a cross-claim or of a complaint in intervention or of a third-party complaint. 3. * should be filed within the time for but prior to the filing of the answer of the defending party to the pleading asserting the claim against him. And so. which is different. Sec. where the plaintiff has filed a notice of dismissal but he previously filed a notice of dismissal. * may be filed only by the defendant against the complaint of the plaintiff. MOTION TO DISMISS UNDER RULE 33 (demurrer to evidence) * based on insufficiency of evidence. Y and Z even though X. he cannot dismiss without court authority. the dismissal is with prejudice. the rule says. such admission is limited only to all material and relevant facts which are well pleaded in the complaint. whereas under Sec. EFFECTS OF ACTION OF MTD 1. appeal from the order of dismissal 2. when court decides the case on the merits. Q. if you did not know Rule 17 . Sec. What does the rule say? A. 2 covers the situation where the plaintiff still initiates the dismissal of the action. who testified on the motion to dismiss. the court was not required to do anything upon the filing of the notice of dismissal.

Because with that confirmation. is that order valid? A. He now says ―this third complaint is barred by res judicata. it would now be clear that the case was dismissed. The law provides the effect. . 1. 1998. Under Sec. 20. Q. No. Q. But in this innovation now requiring the court to issue an order confirming the dismissal. 1997. Yes. 10. what would be the effect of the dismissal under Sec. 22. On Dec. A filed the second notice of dismissal. Supposing in the notice of dismissal filed on Jan. 20. Q. however its dismissal is no longer a matter of right. The counterclaim is not dismissed. It is a dismissal with prejudice. NO. 1998 is a dismissal with prejudice. B now filed the answer Jan. Q. Supposing the court issued the order saying that the dismissal is without prejudice. 1997. 1997 within which to file the answer. It is always a dismissal with prejudice. 1998. However. All that the court has to do is to confirm the dismissal. Q. 1997. a copy of the answer on Jan. A filed a case against B. Q. B has until Dec. 1? A. Q. 15? A. A filed an action against B who was summoned Dec. B now files a motion to dismiss on the ground of res judicata. What is the effect of this dismissal of A? A. 1997. It was served only on Dec. because the court cannot characterize the effect of the second dismissal. Example: Dec. 22. will the resulting dismissal be also without prejudice? A. March 10. 1 says. It is automatically dismissed. Q. He can dismiss it only upon application of the plaintiff and upon approval by the court of the motion. 5. Q. This is now a dismissal with prejudice regardless of what A stated in the notice of dismissal. 25. Because Sec. Let us assume that B filed the answer on Dec. because it (answer) was not yet served. What is the effect of the dismissal under Sec. a dismissal produces a dismissal with prejudice if filed by a person who previously filed a notice of dismissal. B was summoned on Jan. It is a dismissal without prejudice except when the notice of dismissal stated that it is with prejudice. B has a period until Jan. 1 Rule 11. Why is the dismissal with prejudice now? A. 1997. What is the effect of the second notice of dismissal? A. 2 Rule 17 on the counterclaim? A. A filed a notice of dismissal. 1998. it must be on application of the plaintiff and upon approval of the court. Is the contention of B correct? A. Could A file his notice of dismissal on Dec. Yes. 17. But the dismissal under Sec. Does the court have to the order the dismissal? A. 16 considering that the answer was filed on Dec. On Jan. A re-filed the same case. 25. No. what happened now with the complaint filed on Dec. However. 16. After a responsive pleading have already been served on the plaintiff or after a motion for summary judgment has already been served on the plaintiff. Dec. A said it is with prejudice. B served on A. The second dismissal produced by the filing on Jan.41 and you went over the record of the case where a notice of dismissal was filed. 1998. 1998. When may a plaintiff dismiss his action with leave of court? A. 16 when the notice of dismissal was filed. 22. If ever any dismissal is granted. Q. He can no longer dismiss as a matter of right. It is still a dismissal without prejudice unless the court provides otherwise. 15. Q. maybe subject to certain conditions that the court may impose. you would not know what is the status of the case. Should a compulsory counter-claim be pleaded in the answer. This must be now dismissed because this is barred by the second dismissal. It is unnecessary. This section embodies the so-called “Two Dismissal Rule‖. 2 Rule 17 is still a dismissal at the instance of the plaintiff. Sec. 2 Rule 17? A. because it is not for the plaintiff to characterize the effect of the dismissal as provided by law. 1998. 20. A person goes over the record will now know what happened with his case. 2 Rule 17 even if granted by the court. Q. But there will be no legal objection if the court issues an order not only confirming the dismissal but also an order of dismissal. on Dec.

there would still be a basis for the counterclaim. the defendant with respect to the counterclaim is A. B. can litigate the counterclaim either in the same case or B may file in a separate action to enforce the counterclaim. (Motion for Hearing on the Counterclaim) A opposed the motion on the ground that. Since A did not appear for the pre-trial. otherwise. 15. Yes. he may now be considered as having failed to appear for the pre-trial on the counterclaim. the court may impose a condition for the dismissal. B. But the complaint subsists. but it is there. but with a proper motion that he be allowed to dismiss. B has a right to have that counterclaim be litigated and resolved. 2 Rule 20). This is the basis of this rule now that the dismissal under Sec. CA ruled that the order was wrong. otherwise. On pre-trial. he manifests to the court that he desires that his counterclaim be litigated in the same case. But can he still file it? A. What next should be done by B following the declaration of non-suit of the plaintiff? A. 1998. A was declared non-suited and the complaint dismissed. So the dilemma cause by this ruling is this… What then would be the remedy of a defendant with respect to his counterclaim if the complaint is dismissed? There can be no way by which the defendant-counterclaimant can prosecute his counterclaim. Where the complaint is dismissed. Q. No. the corporation sued B. B either serve on A his answer or his motion for summary judgment on Dec. under the rules and jurisprudence then obtaining. In what proceeding may it therefore be prosecuted? A. It may be prosecuted in the same case provided that within 15 days from receipt of motion to dismiss. it means that the complaint cannot be received or re -filed. That motion maybe granted by the court. After the dismissal of the complaint. Q. this should be the procedure to be adopted by the defendant.A. the Why is it no longer a matter of right on the part of the plaintiff to file a notice of dismissal after he has been served answer or a motion for summary judgment? Where B has a counterclaim. Meaning in substance. Q. The counterclaim is unaffected. the plaintiff be declared as in default with respect to the counterclaim. with the complaint still subsisting although it can no longer be proven. Q. 2 Rule 17 of the complaint does not operate as a dismissal without prejudice unless either the plaintiff manifest in his motion that the dismissal be with prejudice or that the court orders that the dismissal is with prejudice. A cannot only prove it. (This is not the ruling of the court. Do not move for the dismissal of the complaint. This was an obiter dictum. B now elevated the matter to CA. 2 Rule 17. So that he can prosecute his counterclaim. CA Facts: This Sec. it is not dismissed. the complaint is there. Q. Can he validly do that? A. there is no longer any basis for the counterclaim to subsist. What would be the effect of a motion of A to dismiss his complaint? A. A now files a motion of dismissal without leave of court. What B should do here is to move that A be declared as in default with respect to the counterclaim. If within 15 days from receiving the notice of dismissal. On motion of B. the counterclaim must be litigated in a separate action. If A now be declared as in default with respect to the counterclaim. therefore. that the plaintiff be declared ―non-suited. Finance vs. If the court grants it. So. and the defendant has a counterclaim. The RTC sustained the opposition applying the rule then. . He should now move that A.‖ Q. The plaintiff cannot prove his complaint. The theory being that. the plaintiff manifest to the court that he desires that the counterclaim be litigated in the same case. 1998. 10. When you say ―with prejudice‖. the A. On Dec. that the dismissal of the complaint of A and B could no longer litigate and prove his counterclaim. B now moved that a date is set on the reception of his evidence on the counterclaim. with respect to the effect of the dismissal on the counterclaim traces its rules to the case of A. the next move of B now is to prove with his evidence his counterclaim. It is there but it cannot be proven. Why? Because A is merely non-suited. Simply. the counterclaim maybe litigated in a separate action. If the complaint therefore no longer exist. If the motion is granted on the counterclaim the dismissal of the action is limited to the complaint. the failure of a defendant to appear for a pre-trial may be a ground to declare him as in default with respect to the counterclaim. the dismissal of the complaint carries with it automatically the dismissal of the counterclaim. So. the ponente suggested this remedy. if he (B) objects. a compulsory counterclaim derives its life from the complaint. questioning the order of the RTC. When may B prosecute his counterclaim in the same case? A. What is the effect of a non-suit? A. court may grant the motion but subject now to the dismissal of the action. So. A failed to appear. it’s a side issue.42 Q. Example: Q. Under the old rule then (Sec.) Justice Bellosillo.

It depends upon the appreciation of the court according to its peculiar circumstances. Subsequently. Q. It is now the duty of the plaintiff to see to it that after the last pleading has been filed. the court can dismiss the action of A. Each case must have to be determined according to the peculiar circumstances of the case. or part of his evidence in chief. A dismissal under Sec. for the simple reason that it was no longer his turn to present the evidence in chief on this day. They are commands from the court and therefore should not be taken lightly. Q. or on motion of the defendant. There are three (3) grounds for a dismissal under Sec. 3 Rule 17. How long a period of time should elapse following the filing of the complaint in order that the inaction of the plaintiff to prosecute it may be considered an inaction for an unreasonably long period of time? A. the dismissal is no longer at the instance of the plaintiff. 2 Rule 17. but the trial on the merits is postponed. he is supposed to present his evidence in chief. 3 Rule 17? A. Under Sec. He does not appear for the hearing on this day without valid reason. When the dismissal order is not qualified. meaning. a pre-trial be held. Q. Supposing on Dec. the failure of the plaintiff to comply with this Rules or with the order of the court. On this day (Dec. His absence on any other hearing is not a ground for dismissal under Sec. The complaint cannot be dismissed because this situation presupposes that A already presented his main evidence. 1998. 3. There is no fix period considered as reasonable. Take note that the absence of the plaintiff for a hearing is not in itself a ground for a dismissal under Sec. his initial evidence on his complaint. 3 Rule 17? A. he was absent and the motion of the defendant the court ordered that the presentation of the evidences of the plaintiff so he was unable to complete. no fixed date was set in the order of the court. 3 Rule 17. Example: Following the pre-trial.3 Rule 17 is a dismissal with prejudice unless the court provides otherwise. It was the tur n of B. because his absence amounts merely to a waiver of the presentation of his rebuttal evidence. He already produced his evidence in chief. No. which will be the basis of that judgment The failure of plaintiff to prosecute for an unreasonably long period of time. It is an absence during the hearing during which he is supposed to present his evidence in chief on his complaint. No. Because let us assume that A did not finish his presentation of his initial evidence in chief. A received the notice of hearing. It is no longer the duty of the clerk of court under the new rules to set the case for pre-trial. May his action now be dismissed? A. No. What is the dismissal under Sec. a trial has been set following a pre-trial. then the court motu proprio may dismiss the action. This time. or to be implemented. Supposing on the hearing on Dec.43 This is the concept of dismissal under Sec. Can the action now be dismissed? A. 3 Rule 17. Q. the failure of the plaintiff to prosecute for an unreasonably period of time his action. the dismissal is with prejudice. 1998 A was supposed to present his rebuttal evidence. it is the duty of the plaintiff to move ex parte for a pre-trial to be held. Or. but he did not appear. the failure of the plaintiff to appear for hearing on a day during which he is supposed to present his evidence in chief on his complaint. the case was set for hearing on Dec. So. It is now at the instance either of the defendant or of the court itself. So. 10). Q. but he had partially produced his evidence. 3 Rule 17: 1. 2. You don’t realize how potent a weapon is this in the hands of the court because orders are meant to be carried out. what are the penalties? The failure of the plaintiff to comply with the rules (Rules of Court) and with the order of the court. He does not reset it but still remain unconcern the action may be dismissed. What is the nature of dismissal under this case? A. 3 Rule 17. may the complaint of A be dismissed under Sec. If the plaintiff does not move to set for pre-trial case following the filing and service of the last pleading and the intervening period between the filing and service of the last pleading and the inaction of the plaintiff and in the view of the court unreasonable. . Remember that under Rule 18. after the last pleading has already been filed. but A was not present on this day. Q. 1998 is for the reception of evidence of B or the reception of the rebuttal evidence of A. it simply says that the complaint be dismissed pursuant to Sec. There is no fix period. or on motion of B. Q. the court may dismiss the action. in some cases of an inaction for a year would be unreasonable. 10. A simply waits for the court to set the case for hearing. or his evidence in chief. 10. the action may be dismissed. 10.

with the period of filing thereof already expired. Before a motion of summary judgment is served 3.A. Answer to A’s complaint 2. If none. Q. SECTION 3 1. dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in a separate action unless 15 days from notice of the motion he manifests his intention to have his counterclaim resolved in the same action. Before a responsive pleading is served 2. 3. RULE 18: PRE-TRIAL Example: A 1. Is there any other pleading required to be filed after these pleadings have been filed? A. None. a copy of that document must always be attached to the pleading or the text of the document should be quoted verbatim in the pleading without the necessity of attaching to the pleading a copy thereof or an action based on an actionable documents. 44 When there is no compliance with this rule such that neither is the text of the document quoted in the pleading nor a copy of the document is attached to the pleading. Supposing the last pleadings required are not filed. 3. dismissal is without prejudice to the right of the defendant to prosecute his counterclaim on the same or separate action. dismissal is a matter of procedure. 2. Answer to C’s counterclaim 4. . and the period for filing thereof does not yet expire. the case is now ready for pre-trial. Counterclaim against A 3. Where the last pleading has not yet been filed. Reply to the answer of the counterclaim Q. Answer to B’s third party complaint 2. Answer to B’s crossclaim D 1. Answer to A’s complaint 2. Yes. RENE NOTES: Two Dismissal Rule * The second notice of dismissal operates as an adjudication on the merits. this failure of the plaintiff to comply with the order of the court may give rise to dismissal. Answer to C’s third party complaint 3. Take for instance this actionable documents. Answer to counterclaim of D 4. before introduction of evidence at trial or hearing SECTION 2 1.also applicable to special proceedings * The court is not required to issue an order of dismissal but is required only to issue an order confirming the fact that the plaintiff dismissed the complaint. Reply to C’s answer 6. So. when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim . Reply to A’s answer 5. 2. One that is authorized by the Rules. But this is not a requirement. They are specified in the rules. pre-trial is premature. an adjudication on the merits. however. Third party against D (After these. Q. where an action or defense is placed in an actionable document. this is a plain violation of the rule on actionable documents. Under the rule. The rule is this. may the pre-trial be held? A. dismissal is at the instance of the plaintiff. Reply to A’s answer to counterclaim to counterclaim 6. Take note. Counterclaim against B 2. without prejudice unless otherwise stated in the order of the court or on plaintiff’s motion to dismiss his own complaint. -When voluntary dismissal applicable: 1. Cross-claim against C C 1. Counterclaim against A 3. Answer to B’s crossto cross-claim claim 7. dismissal is a matter of evidence. under Sec. Complaint B 1. 3 of Rule 17. What things shall be considered in pre-trial? A. So. dismissal is not procured by plaintiff though justified by causes imputable to him. pre-trial may be held upon the filing of the last pleading without the last pleading having been filed. that the order referred to it must be a lawful order. the pleadings are filed.) 5. Answer to counterclaim of B 3.

Example: A vs. Atty. will that now allow A to present his evidence? A. Substantially. Q. Q. where a party can be absent from a pre-trial and yet the absence will not give rise to the corresponding sanctions? A. The rule now is.  the marking of the exhibits. B. it was the duty of the Clerk of Court to set the case for pre-trial upon the filing of the last pleading or the expiration of the period for the filing thereof.  stipulations of as to waiver of objections to documentary exhibits that may be presented.. but his lawyer does. will the action now of the plaintiff or defendant for that matter during the pre-trial carry with it a sanction against the absent party? A.  the possibility of the rendition of a judgment on the pleading or of a summary judgment  the limitation of the issues. Y was not. Y carries with him a written authority. Supposing it is B who was absent. the limitations of the issues will all contribute towards the early disposition of the case. not their respective counsels that may give rise to the imposition of the corresponding sanction against the absent party. In the same way if B is not present. A was present during the pre-trial. Let us reverse. Q. is now lodged with the plaintiff. he may commission another person to appear for him for purposes of the pretrial. so much the better. the marking of exhibits. If they are represented by a counsel. only the parties can agree on the settlement. So. Atty. their respective counsel will be the one to be notified of the pre-trial and it is now the duty of the counsel to notify their respective clients of the pre-trial. Q. Why is there a need for the presence of the parties during a pre-trial? A. Atty. For instance. X. his lawyer. No. Y was present. he can appoint a third person. Y was not. Because. No. There is a enumeration in the Code. among the many purposes of a pre-trial is to allow the parties to sit down together and enter into a settlement if they can. . Normally. This is the reason why they must be present. This rule is no longer obtains. What are the things to be considered during the pre-trial? A. they are as follows:  to consider the possibility of a settlement of the case. the duty to move that the pre-trial be set.Under the Old Rule. Q. When the absence of the party is justified or when the absent party is represented by a person who is duly authorized in writing to act for the party for purposes of pre-trial. Atty. Atty. It is the absence of the parties. meaning in the absent of defendant B. He may appoint his lawyer. but lawyer. his lawyer may appear for him provided that Atty. a lawyer cannot enter a settlement on behalf of their clients unless they are specifically armed with written authority. that stipulations that may be agreed upon. was. Supposing B was present. provided Atty. Q. Notice: For purposes of the pre-trial. 45 The preliminary purpose of pre-trial is to terminate as soon as possible a case so that if a case can be settled during the pre-trial. the waiver of objections to the admissibility of exhibits. The plaintiff A will now be allowed to present his evidence ex parte. So. Supposing a party is notified of a pre-trial but does not attend the pre-trial. Q. May there be a situation. What is the sanction against B? A. Q. there is no need for the parties to be notified. Why? Because in this case. the parties must be notified of the pre-trial date. X carries with him a written authority. however.  and all other matters that may lead to speedy disposition of the case. but his counsel. but there is no such settlement. His complaint may be dismissed with prejudice. A was not present during the pre-trial. Will the absence of the counsel now entitle B to present his evidence? A. A was notified of the pre-trial. What is the sanction against A? A. Yes. Y to act for him.  to consider the possibility of stipulations of facts to be arrived at. if A cannot personally appear.

the plaintiff is allowed to present his evidence ex parte. When must the pre-trial brief be filed? A. the power of attorney of Atty. If it is the defendant who is absent. X or Atty. in the case of a judgment on the pleading. but the written authority does not specify all these three (3) authorities. Rule 132 requires that before a witness testify. the authority to submit the case to other alternative modes of disputes resolution. For instance. Q. So. there must be a motion filed for the rendition of a judgment. . So. Y. Take note also that a pre-trial brief requires certain matters to be specified therein. There must first be a hearing in accordance with the pertinent rules. This is the sanction. the sanction is. the pre-trial brief must include the gist of the testimony of a witness or the purpose for which the documents are offered in evidence. the sanction is this his complaint is dismissed with prejudice.  2. the written authority is incomplete for purposes of pre-trial. Meaning that. What is the sanction against the failure of a party to file a pre-trial brief? A. will be dismissed because of his (B) action. the court cannot immediately following a pre-trial. then the counterclaim. Because the written authority must specify these three (3) specific powers of the agent. the gist of the proposed testimony of a witness. summary in character or the rendition of a judgment on the pleadings may be proper. the authority to settle the case by way of a compromise. 3. Among others . the failure to file a pre-trial brief may be given the effect the failure of a party to appear for a pretrial. his complaint may be dismissed. Q. the authority to enter into stipulations of facts or admission of documents  3. the purpose of the offer must be specified and that no evidence shall be admitted unless it is formally offered and the purpose of the offer is justified. No. This requires that the gist of the testimony of a witness or that copies of documents intended to be submitted in evidence attached to the pre-trial brief is requirement that finds the justification in Rule 132. Can the court immediately following the pre-trial render a summary judgment or a judgment on the pleadings? A. meaning in the absence of A. the pre-trial brief must have already been filed and served on the adverse party. 2. The written authority must specify these three (3) authorities. Q. Take note that during the pre-trial. Following the inclusion of a pre-trial. render a judgment on the pleading for a judgment summary in nature. at least three (3) days before the pre-trial. the rendition of a judgment. when the plaintiff for instance does not file its pre-trial brief. must state the following:  that X or Y is authorized to the following (X for A or Y for B):  1. So. this written authority is incomplete and he cannot legally appear for the plaintiff or defendant. If the defendant does not file his pre-trial brief. The natural consequence of this is… if B has any counterclaim. Is it enough that the person authorized carries with him a written authority in order that he can validly appear for the litigant for purposes of pre-trial? A. What is the sanction against the failure of a party to appear a pre-trial? A. X as his agent for purposes of pre-trial or if B appoint Atty. So. A pre-trial brief must be filed at least three (3) days before the pre-trial. 4. Y as his agent for purposes of pre-trial. there must be a motion for the rendition of a summary judgment. otherwise. Why? Because there are requirements before a judgment summary in nature or a judgment on the pleadings can be rendered to be complied with. Take note that what the Rules authorized to be done during the pre-trial is only to consider the possibility. the following the numbers of witnesses of a party. Q.46 Q. The rule says that. the plaintiff will be allowed to present his evidence ex parte. not that the court will immediately render a summary judgment or that the court will render a judgment on the pleading. This is the basis of this requirement. the pre-trial brief must state the purpose for which the documents are offered. So if A appointed Atty. If it is the plaintiff who is absent and the absence is unjustified or that he has no authorized agent. the court is required to issue a corresponding pre-trial order. copies of documents that may be offered for admissions. as the case may be. are required to be stated in a pre-trial brief: 1. Pre-trial Brief The rule requires that the parties must file a pre-trial brief. if an agent appears for the plaintiff or a defendant with a written authority. Likewise in the case of a summary judgment under Rule 35.

He may be interested in the success of B or he may have an interest adverse to A. They are litigating for a piece of land. ―who is the owner?‖ However. possibility of summary judgment . and in the case this issue can be tried 2. If there are stipulations in the pre-trial. the presentation of evidence of the party is limited to the issues raised in the pre-trial order. those stipulations are reflected in the pre-trial order. submission to alternative modes of dispute resolution a. the issue is. What is the remedy? A. Q. Can anybody just file a motion for intervention? A. What is a pre-trial order? What is its importance? A. a party seeks to prove an issue which is not incorporated in the pre-trial order. that pre-trial order cannot be changed. If there is a third issue. so the trial will now be governed in accordance with the pre-trial order. if necessary to avoid injustice being committed if trial is limited to what is stated in the pre-trial order. The pre-trial order governs the subsequent course of the trial so that. the trial will be limited only to those issues that have been raised in the pre-trial order. no issue can be tried. and therefore he has an interest against for A and B or he may be so situated . the adverse party objects but the court finds that the presentation of that merits of the case would best be sub-served by allowing this issue to be proven. arbitration b. Where a pre-trial order has already been issued. possibility of obtaining stipulation of facts or admissions of facts 6. Rule 30 implies that the pretrial order must specify the issues. a third person. The pre-trial order is a resumé of what transpired during the pre-trial.47 Q. to avoid injustice being committed? A. limitation of the number of witnesses 7. Of course we take into account also another rule that is the rule on amendment of the pleadings to conform to the evidence. suspending the proceedings 12. claims that he is the owner of the lot in question. as a matter of fact he conforms. B says. Q. A says. dismissal of action 11.need for motion 10. ―I am the owner‖. this pre-trial order may be modified. any party cannot prove it as a matter of right because they are limited only to prove the issues raised in the pre-trial order. However. Why? Because under Rule 30. Q. The party intervening may have an interest against the plaintiff in this case. no party is allowed to introduce evidence on any matter other than on these two (2) issues. mediation c. While this Rule 18 does not expressly state that the pre-trial must specify the issues. possibility of an amicable settlement 2. What would be the justification for an intervention? A. So. File a motion for intervention. These are the exceptions to the rule that unless otherwise specified in the pre-trial order. What is the importance of a pre-trial order? A. Unless. a party tries the issue and the other does not object. C may come in to the picture as an intervenor. So that if there are only two (2) issues mentioned in the pre-trial order. subject to the amendment of the pleading to conform with the evidence. No. other matters that may aid in the prompt disposition of the action * The pre-trial and trial on the merits of the case must be held on a separate dates. Q. B. Issues that may not have been raised during the pre-trial may be tried during the trial under these two (2) situations: 1. it is a summary of what happened. reference to a commissioner 8. How can C protect his right over this land? A. he (C) is allowed to intervene in this case. his right will be adversely affected and he has no way of protecting himself because he is ―outside the kulambo‖. Q. In effect. Rule 19 :Intervention A vs. ―I am the owner‖. Q. What is the significance of this rule that the pre-trial order governs the subsequent course of the trial and the pretrial order cannot be amended unless necessary. amendment to the pleadings 5. simplification of the issues 4. conciliation 3. possibility of judgment of the pleading . RENE NOTES: What are considered at pre-trial 1.need for motion 9.

Expropriation case Municipality of Norzagaray filed an action against X. Remember that the complaint in intervention is not served on A and B by summons. If the answer to both questions is ―no‖. If he (C) joins A against B or if he has an interest against both A and B. It may be a pleading in intervention called a ―complaint in intervention‖. When will C in our example file a motion for intervention? A. then the court may grant the motion for intervention. After the intervention is allowed. Remember what we said earlier when C filed the motion for intervention. It was served to them by C. then the court may deny the motion. (Unanswered… Judge Lagui became ill…) When he returned… 1. so he will file a complaint in intervention. Y and Z for expropriation of lot. What may the pleading (intervention) that he (C) can file? A. He dismissed the case outrightly. having heard of the intention of the mayor to withdraw filed now an intervention motion. Issue: Whether the intervention of Matictic people could still survive because of the dismissal. The motion for intervention will have to be heard in accordance with Rule 15 (Motions). If the intervention filed by C is a complaint in intervention require an answer? A. The matter reached the SC. So. Q. So that he can protect whatever rights he alleges he has. the court motu proprio dismissed the complaint for failure to prosecute and of course for lack of presidential authority. by furnishing them a copy. he can now intervene in this case. The dismissal took place before the court could rule on this motion for intervention. So. Or he may file an answer in intervention if he joins B as against A. They must file the answer to the complaint in intervention within fifteen (15) days from receipt of the order of the court admitting the motion for intervention. While this case was pending. This will now be heard by the court. Q. when a complaint in intervention or an answer in intervention. C protected in a proceeding other than in this case between A and B? If the answer to the first question is ―yes‖. The people of certain barrio of Norzagaray. that C will notify both A and B of the hearing of this motion for intervention. that pleading must be attached to the motion for intervention. the motion for intervention is accompanied either by the complaint in intervention or by the answer in intervention. meaning. Q. meaning. he will file an answer in intervention. Why? Because the municipality was unable to procure the presidential approval of the exercise of the municipality of the right to expropriate. If the answer to the second question is ―yes‖. the complaint in intervention may likewise be dismissed or is a complaint in intervention one that can be treated independently of the main case so that regardless of the outcome of the main case. Yes. So. even before they receive the order granting the motion for intervention. the case is between A and B and thereafter. A and B if they are the defendants in the intervention may file an answer to the complaint in intervention. then the court can hear the case. will the intervention delay the case between A and B? 2. Why did this Matictic people want to file an intervention motion? Because through this lot sought to be appropriated was a road. We have two (2) cases of this: . The Mayor however. The law at that time require a presidential approval on the exercise by the municipality of the right to expropriate. it was to their interest therefore that this property be expropriated so that they would be relieved of the burden of paying. the mayor of Norzagaray manifested his intention to withdraw the complaint. Q. Q. attached to the motion was already a copy of the complaint in intervention. This means to say therefore. Q. the intervention. But they had to pay the owners passage fee. How will A and B know what the allegations are in the complaint in intervention since they are not summoned under Rule 14 with respect to the complaint in intervention? A. did not file formally a motion to withdraw the complaint. So. A and B already have with them the copy of the complaint in intervention. The answer depends on the answer to the following questions: 1. At any time before a judgment has been rendered in the case. Matictic.48 that any disposition of the property in the hands of the court affect him. Whatever pleading he will file. then the court may deny the motion for intervention. Q. which the people of Matictic used in going to the highway. Because of this. In an intervention and an independent action in the sense that if the complaint is dismissed. the intervention will delay the disposition of the case. the intervention will not delay the right of C cannot be protected in another proceeding. the intervention remains unaffected? A. may the right of C. Will the court grant or deny the motion for intervention? A. Within what period must they file? A.

So with these. they are contradictory. While this case was pending. This is the theory. The original comment on this rule is that a motion for intervention is merely an auxiliary proceeding giving risk to the implication that if the main case of which it is merely an auxiliary. In the second. Their agreement was binding only on themselves. one who has legal interest in the success of either parties c. X obtained various loans from different mortgages and to guarantee the payment. The motion for intervention was granted and so A now filed the complaint in intervention which as a matter of fact was amended later on. This contention was overruled. This building was eventually sold to C. Issue: Whether the trial court was correct in still maintaining this intervention of A notwithstanding the dismissal. In other words. Q. they have no right whatsoever that could be affected by the dismissal. it can be determined independently of the main case. it would seem that as long as an intervention has been allowed. the right of the intervenor could no longer be adversely affected by whatever agreement the original parties have because it (Metrobank) was not a party to the agreement. Reason: Since A was already allowed to intervene. the intervention could be maintained. then the court will also receive the evidence of C and thereafter decide the case. SC said that this dismissal of the complaint of Y against C did not affect at all the intervention of A. there was already an intervention allowed at the time dismissal of the main complaint was effected. is not disputed by the other parties to the action * defendants are being sued precisely to implead them. By reason of this settlement. there was as yet no intervention to speak of. it would seem that it’s no longer correct. But in the case of Metrobank. How did he reconcile? A. the court will hear the case of A and B and receive the evidence of the parties. But are they in fact conflicting? A. the intervention could no longer be maintained. one who has legal interest in the matter in litigation b. A filed a motion for intervention on the ground that if he (A) supplied X the money with which X acquired these aircon units. ceases to exist because o f the dismissal. In this Metrobank case.49 Rule: The intervention could no longer be entertained because of the dismissal of the case. tried to reconcile the two. In the meantime. What do you notice upon these two (2) cases? A. Among the many assets of X subject of the mortgages was a building (GEA Building). this intervention of A can no longer subsist on the theory that an intervention is merely an adjunct of the main case. it did not bind A. The Rule is clear. this complaint of Y was dismissed. an agreement or a contract binds only parties thereto. * defendants are already original parties to the pending suit . the intervention would likewise be dismissed. And he came out with a conclusion that actually there is no contradiction between the two. So. the intervention of A still continue even if after the main case has already been dismissed. of real and chattel. the dismissal of the main complaint notwithstanding. one who has interest against both parties d. when the complaint was dismissed. Q. the barrio people of Matictic never became intervenors. * proper in any of the four situations mentioned in this Rule. This is how Justice Regalado. Y now filed a suit against C for replevin for the recovery of this aircon units claiming that he (Y) furnished the aircon units to X. So. one who is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof INTERVENTION * an ancillary action. With the dismissal of the case. The matter reached the SC. X constituted real estate mortgages and chattel mortgages.‖ RENE NOTES: Who may intervene a. and therefore. And so. which in whole or in part. with the dismissal of the complaint. he acquired a right to participate and therefore. that right cannot be adversely affected by the agreement between Y and C. On this building where installed were aircon units which subject of a chattel mortgage in favor of Y. Years later… another case involving the foreclosure of mortgages. its heirs and successors in interest. Y and C entered into an amicable settlement. Q. Apparently. our commentator in Remedial Law. Why? Because the court never ruled on the intervention. Later on Y questioned the propriety of the court having authorized the amendment of the complaint in intervention of A. and which X gave Y by way of chattel mortgage. Going back to the last example… where C is interested. it is like a three-cornered flight like that of ―KARAMBOLA. INTERPLEADER * an original action * presupposes that plaintiff has no interest in the subject matter of the action or has an interest therein. In the Matictic case. because in the first.

attendance fee and * does not need tender of kilometrage and other fees reasonable cost of production fee SUBPOENA AD TESTIFICANDUM – a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action. or for the taking of his deposition. 1 is also a holiday. What is ―the day of performance‖ here? A. Under Sec. Subpoena duces tecum may be quashed upon proof that: a. But under Article 13. Article 13 of the New Civil Code When the law speak of years. * No prisoner sentenced to DEATH. The articles sought to be produced do not appear prima facie to be relevant to the issues. the day of performance here is the last day. The filing of the answer. The court which issued the subpoena may issue a warrant for the arrest of the witness and make him pay the cost of such warrant and seizure. days. 16. IF the court should determine that this disobedience was willful and without just cause. Just know what Article 13 of the Civil Code says on the matter. Sec. c. assuming that Jan. B has a period of fifteen (15) days from service of summons on him. What does Sec. Q. Court of the place where the deposition is to be taken c. or at any investigation conducted by competent authority. days or nights. no tender of witness fee or kilometrage Consequences of an Unjustifiable refusal to obey subpoena: a. Subpoena ad testificandum may be quashed: 1. as thus computed. reclusion perpetua or life improsonment shall be brought out of a penal institution UNLESS authorized by the Supreme Court.50 Rule 21: SUBPOENA SUBPOENA SUMMONS * an order to appear and testify or to produce books and * order to answer complaint documents * may be served to a non-party * served on the defendant * needs tender of kilometrage. and the last day included. months of thirty days. 17. or by an order of the court. so the next day will be Jan. 1999. falls on a Saturday. if the witness is not bound thereby 2. or by order of the court. a Sunday or a legal holiday. from sunset to sunrise. This is what actually Article 13 of Civil Code is saying: ―The day of performance is included. 1 of Rule 22 say? A.‖ Q. you compute this 15-day period from Dec. Any Justice of the SC or of the CA in any case or investigation pending within the Philippines * The clerk of court shall issue under the authority of the judge. Under the provisions of Article 13 of the New Civil Code. the first day shall be excluded. ―Exclude the first. but Jan. If months are designated by their name. But Dec. 1999. b. Rule 22:Computation of time Rule 22 refers to the computation of a period fixed by the law. and nights. 2 is not a Saturday or is not a Sunday or is not a legal holiday in the place where the court sits. Who may issue subpoenas: a. b. 1 of Rule 11. A was summoned Dec. SUBPOENA DUCES TECUM – a process directed to a person requiring him to bring with him books. 31. months. 31 is usually a legal holiday. Officer or body authorized by law to do so in connection with investigations conducted by said officer or body d. The person asking for the subpoena does not advance the cost of production of the articles desired. the day of the act or event from which the period starts to run is excluded. If the last day of the period. B. 1 says: In computing any period of time prescribed or allowed by these Rules. In computing a period. the time shall not run until the next working day. The refusal to obey the subpoena shall be deemed a contempt of the court issuing it. they shall be computed by the number of days. which they respectively have. ―exclude the first and include the last‖ rule. documents or other things under his control. So you will have up to Dec. 1999. the day of the act or event from which the designated period of time begins to run is to be excluded and the date of performance included. or by any applicable statute. Example: A vs. it shall be understood that years are of three hundred sixty five days each. so the 15-day period will expire on the following day. of twenty-four hours.‖ . include the last. In computing a period. Court before whom the witness is required to attend b. 1. It is reasonable and oppressive. by the rules.

What is the allowable period that starts to run after this order denying the motion to dismiss was issued? A.‖ (The committee wanted to be different. all that he could know in so far as A is concerned is what appears in the complaint or pleading of A. so that when the trial proceeds. and the last day in Manila is Dec. there is now an expressed provision in the rules that when the last day of performance is a Saturday. Why? What interrupts it? The period was interrupted by this order March 10. 2. the running was interrupted but when the motion to dismiss was denied. In the case of B. Why? Because it started but when the motion to dismiss was filed. but in Q. 25. each party already know what the other party has. 27 and 28. The law says. A could already know all the facts about A. because the holiday is not in the place where the court sits. a Sunday. 1999. 13 of NCC. 24. there is nothing that is not known to the adverse party. if A. which is in Manila. 17. What are the modes of discovery? A. all that A would normally know about the case in so far as he is concerned is what appears in the answer or pleading of B. On the assumption that this motion to dismiss is denied. So. 2 Rule 22. Q. because if these rules on discovery were not allowed. include the last day. 1999). B may be able to know facts that A has.) A. Q. 20. Q. this starts to run March 11. Actually therefore. Q. Let us assume that B received the order of denial on March 10. The day of the act that caused the interruption shall be included in the computation of the period. a party to a case wou ld know nothing about the adverse party’s case except those which are alleged in the pleading. there were ten (10) days remaining because between Jan. We say that when the order of denial the period of 10-day starts to run. Since there were five (5) days of the 15-day period under Sec. probably) Conclusion: Rule 22 did not actually amend Art. Will the last day of performance be moved to the next working day? A. 7. 7.51 Where an act effectively interrupts the running of a period. the defendant. in our example. or a legal holiday in the place where the court sits. No. a party to a case already knows what the adverse party may have. It suspended the running of the period.‖ So. 1 of Rule 11. What does this mean? (This provision is very complicated. a 5-day period has already elapsed. When will this ―allowable period‖ start to run? A. This is the cause of the cessation of the stopping of the running. rules of relevant facts would be limited to what is disclosed only in the pleadings. This practice is widely used in U. Sec.S. (Hinto! …tapos… Takbo!) Q. the allowable period shall start to run the day following the receipt of the notice of the cessation of the cause thereof. What is the effect of the filing on Jan. the plaintiff and B. As the term suggests. 1999 on the running of this period starting Jan. if A and B are litigants. So if the court sits in Manila. 17? A. a motion to dismiss. It will start to run. 20 is a holiday. 2 Rule 22 Should an act be done which effectively interrupts the running of the period. the allowable period after such interruption shall start to run on the day after notice of the cessation of the cause thereof. There was a period of ten (10) days remaining. This is how extensively these remedies are utilized in U. So. Modes of Discovery Rules 23. 1999 (10 days starting March 11 is March 21. So. So that when the trial comes. This10-day period remaining of the original 15-day period is the so-called ―allowable period‖ referred to in Sec. Under Sec. 1999. A may be able to know facts that B may have. 1999.17. Q. ―this allowable period shall start to run the day following the receipt of the notice of the cessation of the period. 26. Dec. 1 Rule 11. this allowable period starts to run the day following the receipt. So. Take note that the legal holiday referred to here is the legal holiday in the place where the court sits. It will resume its running. 1999). Q. which is not a holiday. 1999. This is the concept of discovery. the running must resume. Let us assume however that B filed on Jan. the date of performance is moved to the next working day. these modes of discovery are remedies the law allows a party to a case to avail of for the purpose of getting in advance knowledge of facts related to a case which the adverse party may have knowledge of so that when trial proceeds. But with the modes of discovery we mentioned. B could already know all the facts about A. B has a period ending Jan. This is the day of performance (Jan. 2 and Jan. What is the effect of the denial of the motion to dismiss on the remaining period within which to file the answer? A. . these modes of discovery are intended to allow a party to discover what the other party has. 7. 3 and ending Jan. except in one respect.S. Example: B was summoned Jan.. 1999. before trial. This is still an application of Article 13 which is ―exclude the first.C.

A would want to know in advance what X is going to say. what can be the subject matter of the inquiries made by A? A. Why? Very few avail of it. 10. Let us assume that A would want to take the deposition of X. Whatever his wishes are. 1999 at 8:00 AM? A. Q.C. the party may now discover facts either from the adverse party or from any other persons. no leave of court. Q. What will happen on Jan. This contemplates a situation where a case is already pending in court. Q. How will A compel the presence of X before the notary public on Jan. on Jan.52 While these rules have been with us. So. 10. defendant. A can resort to Rule 23 (Deposition Pending Action) Q. whether leave of court is required on that would depend on an answer to a question ―was an answer already serve on the plaintiff?‖ If there was none. C.. they were never appreciated. a motion for the issuance of subpoena to X so that X will be subpoena. there are certain sanctions that the court may impose on a party who fails to comply with the rules written interrogatories. if there was. The rule is: they cannot be the subject of inquiry. While the case is pending in court. or A will appear before the notary public. The rule is this: If no answer has as yet been served on A. can B also take the deposition of Y? A. 10. Q. Q. The rule in a subpoena to a witness in deposition taking may be issued by the court in the place where his deposition is taken. 10. Supposing it is B who suspects that A will present Y as his witness. Rule 23: Deposition Pending Action This is denominated as Deposition Pending Action. If an answer has already been served on A. What is the remedy available to A. A can file with the court in Q. Q. . if he has any. what will this notice to take deposition contain? A. Be notified that the undersigned plaintiff A will take deposition on oral examination of X before the notary public Z at his office at 123 Timog Ave. He may appear if he wants to. The first is for A to send B a notice to take depositions. Greetings… Pls. 1999 in the office of the notary public Z? A. B (They are litigating a piece of land) A suspects that B may present as his (B) witness X against him (A). to compel the resort to modes of discovery. Meaning. Q. leave of court is required. provided these matters are not privilege in character. If you were A now. for decades. What happens on Jan. and therefore X may not answer that. Is it necessary for A to obtain leave of court in order that he can take the deposition of X? A. Q. Q. The right to take a deposition belongs to both parties. In other words. so that even before trial A will already know what X will say so. Example: A vs. A can take deposition of X on any matter related to the claim of A or related to the defense of B. The deposition may either be on oral examination or on written interrogations. If A now were to take the deposition of X. A will now question X on anything related to the claim of A or related to the defense of B provided they are not privileges. Q. when he will be called upon to testify? A. what do we conclude on from this? A. Yes. How about B? A. He may disappear if he wants to. So. A can now take the deposition of X without leave of court. he may not appear if he does not like. with the rules on request for admission. Q. the plaintiff A can proceed with the deposition of X as long as B was notified. It does not belong only to one. he may appear if he likes. 1999 at 8:00 AM? A. then A must file first a motion asking for leave to take the deposition of X. 1999 at 8:00 AM Signed A B received the notice. how will you proceed taking the deposition of X? A. that where the matter sought to be inquired by A from X are privilege. The notice will be worded this way: To B. X and the lawyer of A. This is why.

The law requires that the deposition officer must notify the parties of the fact that he already sent the copies of the deposition record to the court. A can take also the deposition of X by written interrogations. Q. Its no problem because of personally appearing in court. After the signing of the transcript or if the deponent refused to sign. Q. How will this notice to take deposition of X by written interrogatories be worded? A. This is only by way of deposition through oral examination. Q. the deposition officer forwards now the records of the deposition taking to the court where the case is pending. he will simply record the objection. let’s say he agree that there is no need. If there are parts in the transcript which he desires to change. Following the conclusion of examination of X. Will the notary public however. I will now forward to the court the entire records. or X himself for any reason may refuse to sign. a question appears to be objectionable to B. So. we called this word examination the re -cross examination. After he (A) finished the re-direct examination. then X may again be questioned by A or by A’s lawyer. This is the second examination called the re-direct examination. B can send his written questions to the notary public. Signed by A . the notary public or whoever is the deposition officer. Yes. Can he (B’s counsel) object? A. Q. the notary public or the judge who acted as the deposition officer. This is how it will be done: B. X testified in the absence of B or the counsel of B. is not allowed to rule on the objection. must have to sign the transcript. How would this be done? A. How about B? A. the transcript is shown to X for him to read or for that transcript to be read to him. Let us assume in our example that B received the notice but did not appear either personally or through counsel. A takes the deposition of X by written interrogations. is the same examination that may be conducted as if he were actually before the court in which the case is pending. what shall be done now? A. What do you notice? A. The notary public will now read these questions to X one by one and X will answer them also one by one. He may not sign if. that is therefore. X in our example. In any event when X refuses or fails to sign. X may again be examined by B or his (B’s) lawyer. If B were present or his lawyer is present. in the example of X? (Is A entitled to receive a copy? Is B entitled to receive a copy of the branch record?) A. The testimony of X as stenographically recorded during the proceedings. May B be allowed nevertheless to question X after X finished his direct testimony? A. So that in our example. for instance. Q. If there were exhibits presented during the deposition taking the deposition officer should also forward it to the court. defendant Greetings! You are hereby notified that the undersigned plaintiff A will take the deposition of X by means of written interrogatories. Yes. After its transcription. In examination of ―deponent. Is there a duty on the part of the deposition officer to notify the parties of the fact that he has forwarded the records to the court? A. Under the Rule. Q. after the certification by the notary public or the deposition officer. Yes. Q. Let us assume that the deposition is going on. will now be transcribed. X may sign or may not sign the transcripts. Q. Unlike the judge. Q. rule on the objections? A. then he can change them out in this case. the deposition officer or a notary public or a judge for that matter will have to indicate in the records the reason why X changed his answers. But how about if B is not there? A. Let us assume also that B’s counsel is present while A’s counsel is questioning X. the proceedings are concluded. if I were the deposition officer. No. Yes. provided he pays for the cost thereof.53 Q. Are the parties entitled to receive a copy of the transcript of the testimony of the witness. Attached herewith is the direct written interrogatories. B or the lawyer can cross-examine X. Q.

So. He will now proceed to the deposition officer together with X. what do you notice now? A. Dec. 54 Q. the deposition officer or notary public will read one-by-one the questions and X will answer them one-by-one. This means to say that the testimonies of X will be transcribed. A and B are supposed to present their evidence. Thereafter. ―Your Honor. 1998. . As long as a deponent is alive and kicking. How will the deposition of X be used? A. This is what the notary public will do. Q. which I now asked to be marked as exhibit A. So. B may serve on A a set of questions again. he may within ten (10) days from his receipt of the notice and the direct interrogatories also furnish A a so-called cross-interrogatories. 1998. A will serve on B a copy of his re-direct interrogatories. Cross-Interrogatories (B) 3. A does not know Rule 23. This would have been the question which A would ask X have had been personally questioned by A. Notwithstanding that he (A) claimed that he has been a lawyer for fifty (50) years. Q. if he wants to sign. which B would have asked to be answered by X on cross-examination.‖ Court: ―What does B said on the manifestation of A? B: Your Honor. A may serve on B another set of interrogatories. He will sign. Court: ―Why?‖ B: ―Your. But as long as he is alive. 4 of Rule 23 as evidence. What is the right of B upon receipt of this re-direct interrogatories of A? A. his deposition cannot be used in court. What is A now allow to do. 1. Exhibit A cannot be used. What is this ―direct written interrogatories‖? A. His deposition is now here in court. A has with him all sets of interrogatories: 1. only under the conditions mentioned in Sec. 1 to X. Why? Because a deposition is used only in anticipation of the inability of the deponent to testify in court . he does not know Rule 23. So attached now to the notice is a copy of the direct interrogatories by A. If B desires. the law is clear. They are the questions. He will give this cross-interrogatories to A. On this day (trial). in lieu of his personally testifying in court. the deposition officer will forward to the clerk of court where the case is pending the entire records of the case. So. following his receipt of the cross-interrogatories? A. Within three (3) days of his (B) receipt of the re-direct interrogatories. This is now furnished to B. Then X will answer. I will now present his deposition. 4 of Rule 23. This is what the notary public or the judge will do: He will now take the first set. What for? So that the notary public will now question X or the notary public or the judge who acted as a deposition officer. You’re correct. 15. This was already received in the clerk of court. So. This is how he deposition is taken. except for purposes under Sec.‖ Q. Trial is on Dec. Yes. the so-called re-direct interrogatories. A said. Q. What shall A do with all these sets of interrogatories? A. It is that document that X has asked all the questions on direct examination. he cannot use his deposition. Re-Cross Interrogatories (B) Q. What are these ―cross-interrogatories‖? A. It will be used in accordance with Sec. Re-Direct Interrogatories (A) 4. I will not present X anymore.Q. 4 Rule 23. What will the notary public or the judge do? A. if he wants to make corrections. Direct-Interrogatories (A) 2.‖ Court: ―Right. Q. X is there now… he is now sworn by the notary public or the judge. Q. Q. Your Honor. A now has with him the cross-examination interrogatories of B. Is the observation of the court correct? A. Q. you called the re-cross interrogatories. Introduce all of it which is relevant to the part introduced and any party may introduce any other part. he already had given his deposition. What is he (B) authorized to do following his receipt of the notice and of the direct interrogatories? A. He will now read question no. For what use will the deposition of X be utilized? A. Let us assume that the deposition of X was already taken. The proceeding after X finished answering the four (4) sets of interrogatories will be the same as if X testified on oral interrogatories.‖ Ruling: ―The manifestation is out-of-order. He will make corrections. the so-called direct-interrogatories. The transcript will be given to him to read or to be read to him. You call this the ―direct interrogatories‖. Honor. my witness is X. this deposition can be used. Within five (5) days from his receipt of the cross-interrogatories.

Take note that under Sec. upon application and notice. He simply said that X is telling a lie. This is only to show that X is not telling the truth. No. In our premise. Will this statement now prove that the dog is blue and that there A can introduce that in evidence to prove that the dog is blue? A. Remember how a witness may be impeached or recall by a party against whom the evidence is given may impeached a witness giving the evidence by any of the following means: 1. Why? Because the rule says. Q. director. How may this deposition of X be utilized by A? A. the only use by A of the deposition of X is to show that X is not a credible witness. Can A utilize the contents of the deposition of X to prove the truth of what is stated there? A. he cannot do that unless the exceptions will apply (Sec. whether or not a party. however. Q. 2. may be used by any party for any purpose if the court finds: 1.55 Let us assume that B presented as his witness X. Can that be done? A. . and d. by evidence that the reputation of the witness for honesty. The deposition of a party or of any one who at the time of taking the deposition was an officer. that a witness has been previously convicted of a crime. Let us assume in our example that the deponent is no longer X. When. sickness. Sec. he said the dog of B is blue. 4 Rule 23). or 5. Q. by evidence that a witness has given statements contrary to what he said in court prior inconsistent statements. so far as admissible under the rules of evidence. by contrary evidence. Q.―The dog is blue. unless it appears that his absence was procured by the party offering the deposition. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness. If only part of the deposition is offered in evidence by a party. 4. in open court. in accordance with anyone of the following provisions: a. or imprisonment. in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally. What is impeachment? A. Supposing the issue is: ―What is the color of the dog of B?‖ A said. X is not a witness for purposes of the trial of the merits of the case. c.‖ Q. not only for purposes of impeachment. Yes. ―a party who takes the deposition of another does not make that party his witness. But by this showing. In our example.‖ The deposition of a party may be used by anyone. but for any other purpose? A. integrity and truth is bad. Q.(a). or 4. b. The deposition of a witness. Impeachment is the process whereby a party tries to make evidence against him worthless by showing that the witness or the evidence is not credible.‖ But in his deposition. it can be done. 4 of Rule 23 par. This is usable only in the hands of A to contradict the statement of X in court that the dog is red. but B himself. any part or all of a deposition. In our example. or managing agent of a public or private corporation. to allow the deposition to be used. that the witness is unable to attend or testify because of age. So. nothing more. the adverse party may require him to utilize X as his witness. or 2. A can use that deposition of X but only for one purpose to impeach X. infirmity. 3. ―The dog is red.‖ X said while testifying for B. No. that the party offering the deposition has been unable to procure the attendance of the witness by subpoena. that the witness is dead. X is a witness of A for purposes of that deposition. or 3. that the witness resides at a distance more than one hundred (100) kilometers from the place of trial or hearing or is out of the Philippines. may a deposition be used. He is now a witness of B. ―Any deposition may be used by any party for the purpose of contracting or impeaching the testimony of deponent as witness. A does not concede that the dog is blue.‖ So. partnership or association which is a party may be used by any adverse party for any purpose. ―The dog of B is red. the deposition of X was taken by A. may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof. that such exceptional circumstances exist as to make it desirable. 4 Rule 23 At the trial or upon the hearing of a motion or an interlocutory proceeding.‖ B said. the only use of deposition of X in the hands of A is to impeach X.

Q. a party who resides in a place more than 100 km away from the court to which he is summoned. Yes. cannot testify 2) he lives in a place more than 100 km away from the court where he is supposed to be summoned to testify. The deposition of X must be taken before the Secretary of the Embassy. that the witness resides at a distance more than 100 km away from the trial or hearing or is out of the Philippines. or 4. A may introduce this deposition even if B is alive. or 5. So in this case. our proponent here is X. Procedure: A will give notice to B that he will take a deposition of X in the US. there is something said in the deposition of B favorable to A. In this case. that is to impeach. The deposition can be done. A wants to take the deposition of X who is in the US. 2. For instance.‖ Let us assume now that B testified. for two (2) purposes: (1) to impeach. Q. Legation or the consul general or the consul or a vice consul or any other officer in the foreign service of the Republic of the Philippines in the US. ―for impeaching and any other purposes. 1) when X is already dead. and… Under this section. whether or not a party. In the hands of A. He will file a motion in court asking that the commissioner be authorized to receive the testimony of X. for what use may this deposition of B be taken? A. for any and all other purposes. How may the deposition of X be taken by the so-called commission? How will A go about securities commission? A. 1. Q. he said. or 2. In the case of an ordinary witness. Yes. it is used only for one purpose. Can A take the deposition of his adverse party? A. between the use of a deposition of an ordinary witness and the use of the deposition of a party to a case? A. that the witness is dead. the father of A. infirmity or imprisonment. This would be favorable to him. that such exceptional circumstances exist as to make it desirable. A now examines him on cross-examination. even though the witness is alive. Under the rules of summons. Supposing now. Can that be done? A. The court will name the particular person who will take the deposition in the US of X. Q.56 Q. unless it appears that his absence was procured by the party offering the deposition. or we have no embassy in the US. deposition may be used under any of these circumstances: Our example here presupposes that the witness is in the Philippines. In a case of a party. or 3. if there is any. X resides more than 100 km away from the court room.‖ So. Can A introduce in evidence this deposition of B even if he (B) is alive? A. or if alive. sickness. to impeach B. that the witness is unable to attend or testify because of age. What then is the difference. Yes. in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court. When can this deposition of X be introduced as evidence to prove the truth of what is stated there? A. that can be done. to allow the deposition to be used. may be used by any party for any purpose if the court finds: 1. 4 (C) says: …the deposition of a witness. and (2) for any other purpose. Q. Q. Q. When can the deposition of witness either an ordinary witness or a party to a case to be used to prove the truth of what is said there? In other words. he is not obliged to obey the summons. How can A use the deposition of B? A. he cannot be compelled to appear and so his deposition may be used to prove the truth of what is stated there or if X cannot be subpoena unless the failure to subpoena X was the result of the manipulation on the part of A himself (if he is the one presenting) or there are some circumstances that may be established which would make the presentation of the deposition justified. this statement may be favorable to A because it will give credence to his claim that he inherited this lot from C. Supposing we have no consular officers. The rule says. ―This land used to be the property of C. Rule 23 Sec. Supposing in the deposition of B. . that the party offering the deposition has been unable to procure the attendance of the witness by subpoena. upon application and notice. it can be done.

Why? Because at that time we did not have. will now address a letter to. Attached are the interrogatories. A now will file a motion in court asking that letters rogatory be issued for the purpose of having the testimony of X taken on written interrogatories. We do not have diplomatic relation there. let’s say. as stipulated by the parties in writing COMMISSION LETTERS ROGATORY * issued to a non-judicial foreign officer who will * issued to the appropriate judicial officer of the foreign directly take the testimony country who will direct somebody in said foreign country to take down testimony * applicable rules of procedure are those of the * applicable rules of procedure are those of foreign court requesting court requested to act * resorted to IF permission of the foreign country is * resorted to IF the execution of the commission is given refused in the foreign country * leave of court is not necessary * leave of court is necessary Rule 24: Depositions before Action . (witness of Dasmariñas). and there is only one China i. Reyes (1988). before a secretary of embassy or legation. as stipulated by the parties in writing . Held: Under this rule (Rule 23).e. recognize. This letters rogatory are letters to the court. as distinguished from a situation where we have a consular officer or when we have diplomatic relations. So. vice consul. as we do not now have. Greetings!!! You are hereby requested to take the deposition or written interrogatories of X who lives within your territorial jurisdiction. of Red China. So. The court grants the motion. So. The Manila Trial Court granted the motion. This is supposed to be an office taking charge of the commercial interest of the Philippines in Taiwan. we did not have an embassy or a consular office in Taiwan. consul general.57 In one case. according to Red China. Dasmariñas filed a motion asking that the deposition of his witness be taken. In our example. We do not have any consular office there. the SC sustained the ruling of the Manila Trial Court. This is how Rule 23 works! RENE NOTES: Persons before whom depositions may be taken: . So. Q. Red China. Dasmariñas Garments vs. the Chief Justice of Timbuktu. even without prior leave of court.Outside the Philippines (a) on notice. (b) before such person or officer as may be appointed by commission or letters rogatory (c) any person authorized to administer oaths. Q. The court where the case is pending. since we have diplomatic relation with Red China. where the deposition of a witness have been taken before those persons already named. But we have an office there euphemistically called MECO. How can the deposition of X be taken in Timbuktu? A. the deposition cannot be taken by the commissioner unless there is an authority from the court. Letters Rogatory Q. Issue: Whether the Manila court can order the MECO to take the deposition of X. Taiwan as another state. say RTC of Manila. he filed an application with the trial court in Manila where the case was pending for the appointment of the commissioner. we cannot. or consular agent of the phil. for obvious reason. Example: A wants to take the deposition of X in Timbuktu. consul . the plaintiff wanted to take the testimony of his witness residing in Taiwan.Within the Philippines: (a) judge (b) notary public (c) any person authorized to administer oaths. the defendant elevated the matter to the SC. Letters rogatory is a letter from one court to another court. We shall render to you the same assistance when requested. By letters rogatory. requesting the court of the place to take the deposition of X. So. Taiwan is a mere province of. the deposition of X may be taken. So. What is letters rogatory? A. What is meant by letters rogatory? A. any diplomatic relation with Taiwan as we recognize the One-China Policy. In the case of a commission. We have no nothing.

Q. 19 of B. in the sense that evidence may be received by the court for A and B? A. Imagine how many typhoons we have in one year.e. A and B are neighbors. Q. he expects that by that time a case is filed. He would state in the petition the facts which he wants to prove. What is the remedy now available to A. The hearing must be set by A on a date which is not earlier than 20 days from service by A on B of the copy of the petition and of the copies of hearing. so that his testimony or the testimony of X will be preserved? A. The rule does not say. MTC? RTC? A. B resides in Batanes. What will happen on the day set for hearing? Will there be a trial. How will B know that a petition against him has been filed? A. So. Look at the provision. An action of this nature to preserve the testimony is an action. To file a case. The only trouble is. what will the court do? A. Remenber Sec. How will this preservation be made? A. What is his prayer? A. B has a piece of land too joining A’s lot. Q. What is the remedy? A. So. Q. A and B did not believe that good fences makes good divide. Q. But B is not going to file a case because he is still waiting for the many typhoons to come. there will be a time when he will no longer have any inch of land to stay on. he is waiting for B to file a case. How can I file a case?‖ So. or if he is alive. A Sulu B Batanes Q.P. A said. his expected witness X may also be already six ft. Their respective properties are divided by fence. B again put up another fence. that testimony of X can still be used as evidence? (because it was preserved). A anticipates that if all these expected typhoon will materialize. So while the rule does not specifically state the summons should be issued and served in accordance with Rule 15. there is nothing said on the following: 1. That B has the right to file an answer for an opposition. Why? They first put up a bamboo fence. In what court will this case be filed by A? A. (But A is from Sulu? Never mind that is what the law says. What is the remedy? So that when the case shall have been filed. Well principally A will allege the reason why he wants his testimony or that of his witness X be preserved. Once the petition is filed. the typhoon went down. under the ground. he may already be six ft. Batanes. In the meantime.58 A party before any action has been instituted in court may take the deposition of himself or of a third person for the purpose of preserving that testimony for use in the event a case would later be filed . either by himself against B or by B against himself. Well. By that time he will already be fenced out of the property. The rule says that the court will hear the petition and if granting the petition will avoid failure of justice court will grant the petition. Q. B now puts up this fence but intrudes 1 ft. an action incapable of pecuniary estimation is within the jurisdiction of the RTC. . which is incapable of pecuniary estimation. It simply says ―court‖. the rule requires A to furnish B with a copy of his petition and the notice of hearing thereof. into the property of A. Q. and X is already gone. ―I may file the case. Q. So. But I don’t have the money right now. His prayer is that the court may authorize him to take his deposition or to take the deposition of X. the action by reason of its nature should be filed in the RTC. This will be served on B in the manner that the summons is served to a defendant under Rule 14. So. Another typhoon truck. Q. he cannot compel B to file a case. The court will now issue a summons to B notifying him of the date of hearing as set in the notice of B.) Q. this time intruding another 1 ft. But who will file the case? A. There is nothing said. under the ground. # 129.(Depositions in Perpetuam Rei Memoriam ) Example: A has a piece of land. while this rule does not specifically state that the action should be filed in the RTC. here comes a typhoon. A lives in Sulu. He will now file a case against B in the places where he (B) resides i. What will be the allegations? A. The rule does not say that B or A will be allowed to present evidence.

1 of Rule 23 applies to Sec. If you examine a court witness. Sec. the interrogation is oral. How many questions may be addressed in written interrogatories? A. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. ask the 1. Why do you call it ―deposition before action‖? A. Q. The number of questions is not limited. Sec. If you have only 999 questions. This is the gist of Rule 24. Q. Rule 25: Written Interrogatories to Parties Q. Naturally. This is how Rule 24 works. or without such leave after an answer has been served. can you again send another written interrogatories consisting only of one question? A. B. the testimony of any person. or if the party served is a public or private corporation or a partnership or association. the written interrogatories may be taken only with leave of court. in the absence of any objection to its taking. * If deposition is taken under this Rule. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21. either of the existence of any right nor even of the facts to which they relate. examination or written interrogatories. Questions (Nakasulat) Q.000 questions to ask. Example: A vs. It could be as many questions as a party can conceive of as long as his questions are related to the claim of the plaintiff or to the defense of the defendant provided they are not privileged. and even if the deponent did not testify at the hearing. in other words. What are interrogatories? (written) A. A can address this written interrogatories to B either with or without leave of court. may be taken at the instance of any party. 4 of Rule 23 will apply in so far as the deposition of A or his witness is concerned. 1 of Rule 23 By leave of court after jurisdiction has been obtained over the defendant or over property which is the subject of the action. 000 questions. Is there an oral interrogatories? A. The only limitation is that the question relate to the claim of the plaintiff or to the defense of the defendant and they are not privileged. depositions shall be taken only in accordance with these rules. The rule is. RENE NOTES: * Depositions under this Rule are also taken conditionally. by any officer thereof competent to testify in its behalf.59 Q. What is the meaning of that? A. * Depositions under the Rule do not prove the existence of any right and the testimony perpetuated is not in itself conclusive proof. . to be used at the trial only in case the deponent is not available. 1 Rule 25 Under the same conditions specified in Sec. 1 of Rule 23. Because at the time it was taken there was yet no case. (questioning) Q. provided that these matters are not privileged. by deposition upon oral examination or written interrogatories. The subject may be one that relates to the claim of the plaintiff or one that relates to the defense of the defendant. Sec. However. In the same manner a deposition is taken under Rule 23. How will the deposition of either A or X be used? A. There is no limit. as it can be controverted at the trial in the same manner as though no perpetuation of testimony was ever had. if you have 1. 1 of Rule 25 Sec. the perpetuated testimony constitutes prima facie proof of facts referred to in the deposition. When may a party address written interrogatories to the adverse party? A. If no answer has yet been served by B on A. So. Q. whether a party or not. If an answer has already been served on A. a party can send only one set of written interrogatories . Q. The court in granting the petition will now authorize A to take his deposition or to take the deposition of X or any witness for that matter in accordance with the rule either by means of oral pending appeal. This was only taken in anticipation that a case may later on be filed. Q. Let us say that A wants to address written interrogatories to B. any party desiring to elicit material and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered by the party served. it may be used in any action involving the same subject matter subsequently brought. written interrogatories may be served without leave of court. What can be the subject of the written interrogatories? A. No.

we have a rule on how to prove a private document. issues are now joined. What is the remedy available to B here? A. File a motion to strike out that question. any of the parties may now address to the adverse party a request for admission. Under the rules on request for admission. When the parties are certained and it is disputed Example: If A said. If he (A) follows the rules in evidence.‖ B said. When must a party reply to written interrogatories? A. he may not be compelled by the adverse party: a) to give testimony in open court b) give a deposition pending appeal Exception: When the court allows it for good cause shown and to prevent a failure of justice. ―I am the owner. For instance. ―No document offered as authentic document shall be admitted in evidence unless the genuineness and due execution of that document is proven. Q. When is an issue joined? A. only one set of written interrogatories may be sent. The Rule says. Of course not because they are not litigating in the number of wives. cross. But here comes another question. The party to whom the written interrogatories were sent must answer then within 15 days from service to him of the interrogatories. . the issue is. a party or ordinary witness As to procedure 2. B. ―No. The period is suspended. A vs. The claim of A is that this sale is evidenced by a deed of sale purportedly signed by D. A motion praying therein that B.‖ B said. The questions asked by A is in his interrogatories relevant to the matters concerning the claim of A and defenses of B. So. another set of written interrogatories may be sent. This is how it is done… Let us assume that the answer of B has already been served. to admit the truth of the matters of fact stated in the request or the genuineness of the document the copy of which is attached to the request. So. RENE NOTES: * A judgment by default may be rendered against a party who fails to answer written interrogatories . ―who is the owner of the land.‖ A will have to prove that he is the owner. in our example. Q. no intervention. the party sending the request ask the party to whom the request is sent. is a private document. Rule 138. 15 days to answer unless extended or reduced by the 4.‖ This is an issue because they dispute on the color of the dog. ―the color of the dog is blue. with intervention of the officer authorized by the the party himself Court to take deposition As to scope 3.‖ Why? Because A says. he has to prove every facts in accordance with the rules in evidence. the rules said after the issues have been joined. So. Is the number of wives relevant to the matter on issue? A. 25 As to Deponent 1. Depositions upon Written Interrogatories to Parties Interrogatories to Parties under Rule 25 under Rule 23 Sec. ―How many wives do you have?‖ Q. in the discretion of the court. * General Rule: Unless a party had been served written interrogatories. for instance those are questions for the ownership of the land. B denied the material allegations of the complaint.60 Q. Q. 20. Sec. However. Is there an exception to this rule that only one set of written interrogatories may be sent? A. no fixed time court RULE 26: Admission By Adverse Party Example: Let us say that A and B are litigating over a piece of land. The claim of A is that he bought this lot from D. you are not the owner. he will have to prove that he is the owner. Supposing the written interrogatories include questions that are improper. direct. A may also have declared this lot for tax purposes (tax declaration) and A have paid the taxes on this land. What is the effect of that motion on the part of B to strike out that improper question to the running of the period for the filing of the reply? A. In his answer. Written interrogatories are directed to 2. re-cross Interrogatories 4. party only 1. The general rule is. This document however. ―the color of the dog is red. redirect. only one set of interrogatories 3. be not require answer. In this request. Q.

It cannot be used as evidence against B in another proceeding. Let us assume that B after he failed to deny made oath the genuineness of that document. He cannot be compelled. How will these rules on discovery have shortened the time for proving facts in accordance with these rules in Evidence? A. 3) The genuineness of the document.‖ Ruling object of B is sustained. he will address a request for admission. the genuineness of that signature is cleared to have admitted them consequently. the answer and issues having been joined. What would be the effect now of the failure of B to answer in demand within the period mentioned in the request? A. Why? Because these are admissions of facts judicially made. will he (A) still prove the signature over the name of B is the genuine signature of B? A. What would be the effect of the failure of B? A. Why? Because if there is no denial under oath of the genuineness of that signature. there is no denial of the truth of the fact that A paid the taxes. facts judicially admitted do not require proof and cannot be contradicted. A cannot present B as his witness. What is the duty of B upon receipt of the request? A. B. Q. B). that he did not affix that signature? A. Is the ruling correct? . What will B do with that copy of answer? A. This admission of B is only for the purpose. No more. Q. He is cleared to have admitted the truth of those matters of facts. Under the rules on evidence. Q. B and C. he denies that A has declared his land for tax purposes. No. this is what he will do. Can he (B) now prove during the trial that the signature is a forgery. ―Under Rule 26. if there is no denial of he truth that A has declared the lot for tax purposes. if he denies that the signature over the name of B is his signature. copy of which is attached as annex ―D‖ Copies of these private documents are now attached for admission. in this case (A vs. A called on B as his witness. Take note however. that there is a limited use for an admission. I cannot be compelled to be a witness of A. He is cleared to have admitted that the signature over the name of B is the genuine signature of him. Reason: A did not send me any request for admission. 2) A has been paying the taxes of his lot as evidenced by tax receipts. (This is an innovation now. The truth of the matters of facts. They are deemed proven. The rule is. if he denies the truth of these facts. B serves his answer to A. For instance in our example. A does not have to prove these facts anymore. He must file it in court. B defendant. copies of which are annexes A. (the genuineness of the signature). B objected. More particularly this is what A ask B in that request for admission.61 Q. B said. it was not so under the old rule) So. B will file his answer to the request and serve a copy thereof on A. why? Because you are not allowed to contradict your admission. but no less than 15 days. Within the period granted to him under the written request.‖ A now is in possesion of these documents (The request for admission to which was attached a copy of the documents. To deny under oath the truth of these matters of facts. After A have already received for instance. This request for admission will shorten the proceedings. Q. Will A still have to prove during the trial that he declared the land for tax purposes. Q. I can only be compelled to be a witness of A if A sent one request for admission on matters of facts of w hich I have of personal knowledge. he will say there. ―You are hereby requested to admit that the signature over the name B in Annex B is the genuine signature of B. there is no need for A to prove it. Greetings!! You are hereby requested to admit under oath within 15 days from receipt thereof the truth of the following facts: 1) A declared a lot for tax purposes per tax declaration #1234. that he paid the taxes. City of Manila. ―B denies the truth of the matters stated in the written request an denies that the signature over the name B in annex ―D‖ is his signature. Q. So you will now appreciate how this request for admission can help discover the facts.) Q. under the party making the admission is allowed to withdraw the admission because he can show that the admission that he made was a result of a palpable mistake or that he did not actually make an admission. This is allowed but this right of a party to utilize the adverse party as a witness is no longer absolute in the sense that there may be instances when a party cannot call on the adverse party as his witness.

What will be the advantage of this examining? A. In the meantime. * each matter must be denied SPECIFICALLY under oath setting forth in detail the reason why he cannot truthfully admit or deny. Rule 27 does not specify the period when a party can avail of this remedy. copy the document. Can B however take hold of this document and bring it home for scrutiny? A. in all probability A will refuse. copy the document if he (B) wants. Normally. the motion must be filed in accordance with Rule 15. may copy the document may photograph the document. Q. No. State in your motion the fact that this document referred to in the complaint contains evidence material to the case that this document is under the custody or control of A. Yes. RENE NOTES: * The effect of a failure to make a reply to a request for admission is that each of the matters of which n admission is requested is deemed admitted. and therefore pray that A be ordered to produce the document. i. When? On the date and hour mentioned in the order. Is there a particular time when this motion on the part of B may be filed? A. Where? Before the person named in the order. B wants to see this supposed deed referred to in the complaint of A has evidence of his claim that he bought this lot from C. you (B) doubt that your father C sold this property. Do you think A will agree? A. B said. Q. ―You will have the opportunity to see this document in court when I present it as evidence. for instance. Rule 27 : Production or Inspection of Documents or Things Supposing in our example. USE: An admission under this section is for the purpose of the pending action only and cannot be used in any other proceedings. A should have first addressed to B request for admission of matters in issue of which B has personal knowledge. the court will hear the parties and thereafter will rule on the motion whether to deny the motion in which case A will not be ordered to produce the document or grant the motion. So A cannot call B to prove these matters within the knowledge of B unless A previously sent a request for admission to B on this matter. to produce the document before a specified person on a specific time. it is the clerk of court who is designated as the officer before the document should be produced. it must be heard.62 A. move that A be required to submit this document for examination by a handwriting expert. Q. If you were B in this example. Since this is a document material to the claim of A. Rule 27 Under this rule. photograph the document. ―A can you kindly lend me for my securing this document you mention. he is only authorized to examine it before the clerk of court.e with due notice of A. He will say. This rule equally applies within respect to real property or an object for that matter. how would you avail of the benefits of Rule 27? A. Does A have the duty to produce this document even before the trial for the scrutiny of B. The order will direct A to allow B to go over the document. he can take steps to have this matter inquired into. Of course. Q. So he can now. Why? Because under the new rule now modifying the rules on evidence. in which case the court will require A to do the following: 1. . the document specifies the officer before whom the document should be produced. the father of B. Of course. Remedy. photograph the document. unlike a deposition pending action or written interrogatories or request for admission. when an order is issued by the court directing a party to produce the document. So in our example. before A can call on B as his witness. the court may report A to produce that document before its clerk of court on a particular date and hour. so that B can examine the document. If after B examining the document believes that that is a forgery. For what purpose? So that the party asking for the production of document may examine the document. State the reason why you want to examine it. On the day of the hearing. which fix a period within which his remedies may be amended of. This is what you will do: File a motion that A be required to produce that deed of sale he referred to. so that before the trial B can now have an idea whether this is a genuine document or not? A. Q. Normally. No. A alleges in his complaint that he brought this lot in question from C. a party to a case for good reason shown may file a motion requesting the adverse party to produce a document or object under the control or custody of the adverse party.‖ Q.

by filing a motion that H be directed to submit himself to an examination of his physical condition before Dr. y to testify on his findings. The treatment that the doctor administer to the patient. X. See. 2. Y’s testifying. for what purpose? To determine. Y. a surgeon cannot without the consent of his patient testify on the following: 1.‖ H said ―I object to Dr. He got also a copy of the report. So the answer of H is ―Anong sinasabi ng asawa ko sa complaint ay hindi naman totoo. now that he received the copy of the report of Dr. Yes. Y. Example: W sued the husband H for declaration of nullity of marriage on the ground of fraud. The examination was finished. X. X examine him. Why? Because whereas before marriage. Is the ruling of the court correct? A. So this is therefore a rule (Rule 28). W said ―W your honor. You remember the rule that a doctor of medicine. The advice that the doctor gave to the patient. Upon reading it.63 Let us assume that A wants to see the land in question. you would approach B to allow you enter and see the land and have it surveyed.‖ The court overruled the objection and allowed Dr. The information that the doctor obtained in the course of attending professionally to the patient when information was necessary to enable the doctor to properly attend to the patient and which information if revealed. Rule 28 therefore. Why? Because the result confirmed the allegation of the wife. RENE NOTES: * Where the party examined requests and obtains a report on the results of the examination the consequences are: . which should be taken into account in relation to the rule on the confidentiality of the communication between a patient and a doctor. an obstetrician. that he may have sustained by reason of his having been deprived of the fruits of the property. Y. which is now in the possession of B. Do you think B will allow you? A. Q. you could just imagine what happen now! Whereas when he got a copy of the report of Dr. If you were A. X. Rule 28: Physical and Mental examination of Persons Rule 28 contemplates a situation where the mental condition or physical condition of a party is an issue. Of course this motion must be with due notice to H. for instance. Kaya ko! Kaya ni Mister!‖ So he wanted to disprove. Saan kaya nag-aral ito hindi marunong. he will be able to determine the extent of the cultivation of B. A. how big is the area thereof developed or planted by B so that A can estimate the damages. he actually fainted! Why? Because the result of Dr. Q. Because by obtaining the copy of the report of Dr. What is the prayer in the motion? That B be ordered to allow A to enter upon the land survey. ―Tarantadong doktor ito. So with the entry now of A upon the land. And the determination of that issue is required in order that a proper judgment can be rendered. etc. What for? To examine him also on the matter in connection with which Dr. Why? Because wh at was represented to be a ―deadly weapon‖ turned out to be a ―dead weapon‖. H represented himself to be more than able to perform what is expected of a husband to the effect and dismay of W. how their discovery will help A!!! RENE NOTES: PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS * essentially a mode of discovery * the Rules is limited to the parties to the action * the order under this Rule is issued only upon motion with notice to the adverse party SUBPOENA DUCES TECUM * means of compelling production of evidence * may be directed to a person whether a party or not * may be issued upon an ex parte application. But H is one who is easily daunted by this adverse report. offers the testimony of Dr. Y’s examination confirmed the findings of Dr. The examination was conducted out of curiosity. Y. qualifies the provision. So this rule does not apply when Rule 28 is involved. Trial…………………. he nearly fainted.‖ So W moved. So in announcing the purpose for which she offered the testimony of Dr. Q. he cannot. Q.. A. So what did he do? He engaged Dr. Y. so under the rules on evidence. H waived the benefit that he may have over the testimony of Dr. he said. What is the remedy? A will file a motion. X. he has almost fainted. X. The representation turned otherwise. 3. He will not. H obtained the copy of the report of Dr. would embarrass the patient. W now called on Dr. I have not given him my consent to testify. Y to prove that H cannot do it.

64 (a) he has to furnish the other party a copy of the report of any previous or subsequent examination of the same physical and mental condition. when a witness in a deposition refuses to be sworn to or refuses to answer. Third. Under Rule 26. What are the sanctions? A. what are the sanctions against him. Q. the party who refuses may be arrested. the only instance where a party refuses may not be arrested is the case of the party who is required to submit himself to physical or mental examination. Under Rule 25 (Written Interrogatories) when a party to whom written interrogatories are addressed refused to answer. When a party refuses to allow. a party may be declared in default. the party who refuses may be ordered to pay the expenses Party including attorney’s fees. in all other cases the refusing party may be arrested. in disobedience to a court order. these are the sanctions: Under Rule 29. Second. Q. In gist. a contention of a party in connection with certain matters would be deemed established in accordance with his claim. Fourth. what are the sanctions? A. under Rule 23. Fifth. and (b) he waives any privilege that he may have in that action or any other involving the same controversy regarding the testimony of any other person who has so examined him or may thereafter examine him. he cannot be arrested. Seventh. . a party may not be allowed to introduce evidence to support Support a fact. under Rule 28 when he disobeys. What are the sanctions against the party to whom the request was given? A. Q. the adverse party to examine a document or and object or to permit an entry into premises. when a party to whom the request for admission is sent. a judgment may be immediately rendered. Rule 29 : Refusal to Comply with Modes of Discovery Rule 29 enumerates the sanctions that may be imposed by the court where a party does not comply to any of these modes of discovery. denies the truth of the matters stated therein and subsequently the party making the request proves it. Sixth. a complaint may be dismissed. When a party refuses to submit himself when ordered by a court to examination of his physical or mental condition. For instance.

Just a reminder: there are two instances where issues are not raised in the pleadings may be tried in the court: 1. Answer 3rd party complaint of B 2. Complaint – Evidence in Chief 2. decision. Let us apply it. if there is any. 1. d) their third-party complaint. B A. Answer to complaint of A 2. Unless otherwise stated by the order of the court. Answer to Reply to Counterclaim of B – rebuttal evidence of B B. Answer to reply to Counterclaim – Rebuttal 3. Ans. 1. 3rd party complaint 5. 1. – reply to counterclaim – claim of C C. when an issue is tried by a party with the objection of the adverse party. 4) thereafter. 1. b) their counterclaim. A 2. Answer counterclaim of B D. 6) oral arguments. This is the order of trial. they may have to adduce their evidence in support of their answer to these claims. if there is any. Answer to complaint counterclaim vs. A 3. rebuttal evidence. Counterclaim vs. So.65 Rule 30: Trial Unless otherwise provided by the court the order of trial is as follows: The evidence of the parties is limited to the issues in the pre-trial order. but the court finds that the presentation on that merits of the case would best be served by allowing evidence to be received in this case. Example: A vs. That is why the pre-trial order if there are only two issues the parties cannot present any evidence on any other issues except on the issues in the pre-trial order. 5) it may be followed by sub-rebuttal evidence. the order of trial is as follows: 1) the plaintiff presents his evidence in support of his compliant. these issues though not raised in the pleading may be proven during the trial. What are the pleadings of A? . 2. However. We go now to Rule 30 proper. B rebut evidence of A 3. C 4. The only issues which the parties are allowed to present their evidence are those specified in the pre-trial order. 8) thereafter. if there is any 3) thereafter. c) their cross-claim. in these two (2) cases. memoranda. where an issue is tried by a party without objection on the part of the adverse party. the parties against whom counterclaims or cross-claims were pleaded. B A – Answer to counterclaim of B and C B – Answer to counterclaim of D C – Answer to cross-claim of C Q. 2) thereafter the defendants will present their evidence on: a) their answer to the complaint. if there is any. or 7) in addition thereto. Counterclaim vs. you take into account Rule 10 which allows amendment on pleadings to conform to the evidence. Cross-claim vs.

A has only his complaint. Q. and still he (B) will win. 3. in actual practice. or evidence against the cross-claim. So. In actual practice. in which case B can rebut these rebutting evidence of A. Later. There may also be new matters taken up in the rebuttal evidence of A. But in the actual practice where the parties are only the plaintiff and the defendant. So the evidence in-chief now of B has also been terminated. B can rebut the rebuttal evidence of A. may now adduce his evidence. There is another stage for the presentation of the rebuttal evidence.66 A. After he has finished presenting his evidence on his counterclaim. On what manners will he now present his evidence? A. and at the presents at the same time the rebuttal are held simultaneously). So whatever defenses he alleges in the answer will be the subject matter of his evidence. there is no need for A to present his evidence in support of his answer to reply to the counterclaim. After the evidence is in. What are these rebuttal evidence? A. His answer to the complaint. Unless otherwise ordered by the court. the initial presentation of the evidence in chief is commenced by A. these two (A presents his evidence. No. Q. 1. he will now rest his case. Q. What is the pleading of B? A. if he wants to. So those matters taken up in the evidence inchief of B. Q. He (A) will limit himself to only his complaint. he may at the same time present his evidence of B. When he present his evidence in support of his answer to the counterclaim. You call this as his evidence in chief. B. 2. he may now adduce evidence on his counterclaim. There being a counterclaim against him (A). there is a separate stage for the presentation of evidence against the counterclaim. So A now presents his evidence first on his complaint. per rule 30. B does not have to introduce his evidence. may now be rebutted by A. the other pleading of A is his answer or reply to the counterclaim of B. He will adduce his evidence first with respect to his defense in his answer. not yet. If A failed to adduce the quantum of evidence required to present. A must produce evidence to support the factual allegations in his complaint. No. Why do we say ―If B wants to. he may adduce his evidence‖? A. Let us apply the order of trial. then the court may order the case submitted for decision unless the court require parties either to orally argue or file a memorandum or require both parties to do both (orally argue and submit a memoranda). So. After he has presented his evidence on these matters alleged in his answer. this is how it is done… you will note that. . when A is proving his answer to the counterclaim of B. there will be three (3) stages when A would present his evidence. Under the order…… Rebuttal evidence meaning A can rebut the evidence of B. Because B is not compelled to present his evidence. Q. Will A now prove his defenses to the counterclaim of B? A. You call these rebutting evidence of B the Sub-rebuttal Evidence. When he present his evidence on his complaint. Q. which is preponderance of evidence. There will be a time for him to adduce evidence on the second pleading. in so far as the answer to a complaint is concerned. if we follow the order. Q. then we say. Let us assume that B elects to present his evidence. Will this end now the trial? A. Why? Because A may present now his evidence on th ese matters (Answer or reply to B’s counterclaim because if B did not. his rebuttal to the evidence of B. his counterclaim against A. There may be evidence taken up when he presented his own evidence. which are disputed in the answer of B. After A finished presenting his evidence on the complaint. What follows next? A. In other words.

His (B) evidence on his answer to the complaint of A. He will have his answer or reply to the counterclaim of C. So A now will produce his evidence in support of his answer to the counterclaims of B and C. Counterclaim against A. . He will now have his counterclaim against B. Q. How about the pleading now of D? A. He will present his evidence in support of his answer to the third party complaint of B. First he will adduce his evidence in support of his answer to the complaint of A. How about C. Q. During the presentation of B of his evidence. Yes. His cross-claim against C. 3. his counterclaim against A. 4. 2. this is the order of presentation of his evidence. B will now introduce evidence on the following: 1. There will be a time for that. Order of Trial………. What then will be the added pleading of B? A. His third-party complaint against D. Not yet. He will have his answer or reply to the counterclaim of C. So C will produce his evidence in support of his answer to the cross-claim. what are the pleadings will he have? A. since he has a cross-claim against C. is there a counterclaim pleaded against him? A. How about B? A. What will be the pleading of C? A. The parties against whom a counterclaim or a cross-claim have been pleaded. Q. there are two(2) defendants (B and C). his cross-claim against C. Q. None. In our example. What will be the added pleading of B? A. but there is a cross-claim. How about B. Q. is there a counterclaim pleaded against him? A. Same (as before) Q. and he will have his answer to the cross-claim of B. He will have his 3rd party complaint. How about D. Q.67 In our example for instance. Q. How about C? A. He will now present his evidence in support of his counterclaim against B.. he will also produce his evidence in support of his cross-claim. who now will present his evidence? A. is there a counterclaim pleaded against him? A. there is a counterclaim pleaded against A by B and C. He will present his evidence in support of his counterclaim against A. Q. How about B. Let us assume that B filed a cross-claim against C. Q. So you will notice if he (B) has a cross-claim. Will he (C) now adduce evidence in support of his answer to the cross claim of B? A. This terminates the presentation of the evidence in chief of A. Following that. C now will also present his evidence. The same things still with A in the order he presents his evidence to support his complaint and nothing else. How about D? A. Let us assume that B has likewise a third-party complaint against D. Q. This being the case. Q. B. The pleading of C will be his answer to the complaint of A. He will have his answer to the third party complaint of B. what would be the added pleading of A? A. C and D. Q. He will have his answer or reply to the counterclaim of D. the counterclaim of D. None. Answer to the complaint of A. Q.

the only persons who will present their evidence in support of their answers to the counterclaim or crossclaim are A. this is possible when for instance the parties stipulate on facts and the facts stipulated upon are enough to serve as basis of a judgment. Again. And worst of all. This provision now settles the question. where a lawyer does not feel like going to court.68 So. T his settles the conflicting decisions of the SC on the question of whether or not a clerk of court can be commissioned to receive the evidence. In case the ground is absence of evidence. it is more often honored in its break than in its compliance. although he may later on object to their admissibility the rule says. These are unethical practices!!! Just stick to the rule and you’ll never go wrong!!! RENE NOTES: Notice of Trial . The rule requires that the motion must be supported by affidavit.three months over all Exception Authorized by the Supreme Court administrator . provided the facts are sufficient as basis of a judgment. He presents a medical certificate. we go again to the same order Rebuttal. then he justifies it. But even then. This is the order of trial under Rule 30. May judgment be rendered by the court without a trial during. Q. Yes. Yes. is a situation where the lawyer himself becomes a doctor. the clerk of court notifies the parties at least five (5) days before trial. For instance. May a judgment be rendered on the basis of the stipulations of facts? A. Limitation on Adjournments . B and C. illness of party or illness of a counsel Q. a member of the Philippine Bar. Sub-Rebuttal then oral argument or memoranda or both. the only trouble with this is. These things that actually happen practice. Sometime however. The only problem on this rule is. he cannot find immediately a doctor friend. SC issued a circular directing judges of the trial court to implement this rule on postponement strictly meaning postponement should be granted except when there is a compliance with this rule that any motion for postponement based on absence of evidence should be accompanied with its required affidavit. In one line of decision held that the clerk of court have such authority. then decision. So. absence of evidence 2. if the adverse party states that he does not have any objection to the facts supposed to be established by the testimony of the absent witness. Another line of decision tells that the clerk of court have no such authority. What is the requirement in order that a motion based on these grounds maybe validly acted upon and granted by the court? A. The same thing is true when the ground of postponement is the ailment of the lawyer or of the client such motion for postponement may be granted or acted upon if it is supported by an affidavit showing that the presence of a counsel or a party before the court is necessary and that the character of the ailment is such as to excuse the non-appearance of the ailing lawyer or litigant. which the parties may not present their evidence anymore? A.Upon entry of the case in the trial calendar. the motion for postponement should not be granted. he makes his own medical certificate. Grounds of Postponement You will note that under Rule 30 that a trial may be postponed on these two (2) grounds: 1. the court may delegate the reception of evidence to a clerk of court who is a lawyer. Under Rule 30. during the incumbency of Chief Justice Marcelo Fernan. The clerk of court can receive the evidence provided the clerk of court is Q. it has been interpreted to be merely directory. Following this. The lawyer is not realizing that for introducing in evidence this fake medical certificate he can also be held criminally liable.one month for each adjournment . the affidavit must state the materiality of the evidence that is not produced and the efforts exerted to. Where did he get this medical certificate? From a doctor friend who will say ―Anong sakit gusto mo?‖ these doctors are not realizing that for falsely certifying they incur criminal liability un der RPC.

they may be consolidated in one court. Q. May the two cases be joined? A. They originated from one and the same incident. After the main case has already been tried.69 General Rule: The judge must himself personally receive and resolve the evidence of the parties. offered to discuss a possible compromise but the other party refused to offer. leaving untried the four (4) other cases. render only one decision as if these two cases are only one. what would happen if cases were tried separately. together with the objections to be resolved by the court within ten (10) days from the termination of the hearing. In this example. the Cavite court could try the Quezon case and the Cavite case at the same time. damages were suffered by the buses and the passengers. (b) The reception of evidence shall be made only by the clerk of that court who is a member of the bar. When does consolidation take place? A. if these case is consolidated there. Under this option. if the Cavite Court did not want to hear Quezon case. then the court will render only one judgment. Either in the court of Quezon or in the court of Cavite. On the other hand. There is another method of consolidation. before the commencement of the action or proceeding. Q. (c) said clerk of court shall have no power to rule on objections to any question or to admission of evidence or exhibits. or 2. What is the fact common to both cases? A. However. to receive the evidence of the principal case leaving unheard the other cases. If two or more cases have between or among them common questions of fact or of law. Q. sued A and B in the RTC of Cavite. under the second mode of trying these cases. consolidation is mandatory. The possibility of a judgment rendered by Quezon RTC being different from the judgment rendered by the Cavite RTC insofar as the cause of the accident is concerned may be conflicting. This presuppose that there are several cases of the same nature. If they were to go to Quezon. and (d) He shall submit his report and transcripts of the proceedings. There is a common question of fact or of law common in both cases. X. In what court? A. the reception of such evidence may be delegated under the following conditions: (a) The delegation may be made only in defaults or ex parte hearings or an agreement in writing by the parties. The court where the cases are consolidated may try all the cases at the same time and render only one judgment. Y and Z. As a matter of fact when consolidation is proper. Is a court obliged to hear cases for consolidation? A. Q. Under the present ruling. The passengers who were injured as a result of the collision. that would entail much expense to the party. the court where the cases are consolidated may try only the principal case. If these cases were consolidated in Cavite. if willingness to discuss a possible compromise is expressed by one or both parties. So A now sued B in the RTC of Quezon. Yes. What is the justification for the consolidation here? A. When cases are consolidated in one sala. Say. See. these parties in the court of Quezon both being bus companies could afford the expenses of going to Cavite. Rule 31: Consolidation or Severance Q. The theory is that the court cannot be compelled to hear the case of another court. Why? Those who filed the case in Cavite are residents of Cavite. if there are five (5). These were both passenger buses. In this particular case. i. Under the old rule. no more. Suspension of Actions Article 2030 NCC Every civil action or proceeding shall be suspended 1. the Cavite court cannot be compelled to try. This is the concept of consolidation. As a result of the collision. if it appears that one of the parties. Example: A collision took place between the vehicles driven by A and the vehicle driven by B. so to avoid this (the possibility of conflict) it is better that these two cases be tried by only one court so that there will be no possibility of conflicting decisions. SC ordered the consolidation of these two cases in the RTC of Cavite. Q. Q. Why? For practical purposes to minimize expenses. . What would be the proper method for the court to adopt in resolving these cases? A. the first case (the principal of them) will be heard first.e… the collision.

c) by hearing only the principal case and suspending the hearing on the others until judgment has been rendered in the principal case (Test-case method). Yes. It is the opposite of consolidation. delegate the reception of the evidence to the Clerk of Court. 2. Q. the court again can hear these other causes of action. B now has a counterclaim against A in respect to his first cause of action. where there is a need for the reception of evidence consisting of a long accounts either from one or both of the parties. if filed with different branches of the same court having jurisdiction and one of such cases has not been partially tried. Supposing. who is a member of the bar. Exception: When consolidation a matter of duty: 1. or of purposes of carrying a judgment into effect. including the counterclaim of B. The general rule is. his powers are specified in the order appointing him. There is this complaint of A involving three (3) causes of action. Thereafter. court may hear only one cause of action remaining unheard the other causes of action. May a commissioner nevertheless be appointed? A. What is the situation contemplated here? A. conducting only one hearing and rendering only one decision. . In other words. In the meantime that this case is decided and these two other causes of action are not yet decided. Q. . Where the parties agreed in writing that a commissioner be appointed. Under this rule on severance. instead of the court conducting a hearing on all the claims at the same time it will limit itself to the hearing of a particular claim. They are the following: 1. the court will try this first cause of action. In our cases here. when tried before the same judge. B. RENE NOTES: General Rule: Consolidation is discretionary with the trial court. but the court can suspend the enforcement pending the disposition of these two other causes of action. What is the extent of the power of the commissioner? A. When may the case be tried by a ―Commissioner‖? A. but the other refuses. What he can do are specified. there may be several claims or several reliefs in which case. This last situation contemplates that a motion is filed based on facts not on record. Three Ways of Consolidating Cases a) by recasting the cases already instituted. 3. Normally the trial would be conducted on all these causes of action and thereafter the court will render only one judgment. when a question of fact other than upon the pleadings arises upon motion or otherwise in any of stage of a case. Rule 32: Trial by Commissioner Q. b) by consolidating the existing cases and holding only one hearing and rendering only one decision. It is a third person called the Commissioner. Take note that under Rule 30 the reception of the evidence is by the judge himself or the court may in case of a default case. however.70 Q. the order does not say anything with respect to the limits of his authority. a party can join all these causes of action against another in only one complaint subject only to the conditions of joinder. Yes. Q. the court will now render judgment leaving undecided these two cases (these two causes of action). A vs. 2. Supposing the parties did not agree in writing that a commissioner be appointed or that one wants a commissioner to be appointed. This is how the rule works. Can this be the subject of enforcement already on it. can be the subject of an appeal? A. the party who receives the evidence is other than the judge. Q. or both refused to agree to a commissioner. After the reception of evidence in this first cause of action. What is severance? A. These different causes of actions and you know under the rule. But under this severance. The complaint alleges three (3) causes of action. In a case of severance. when the taking of the accounts is necessary for the purpose of informing the court before judgment is rendered. it is a trial by installments. These are the three (3) situations where a commissioner may receive the evidence even over the objection of the parties. Then in the hearing on this motion a commissioner may be appointed to receive the evidence. Under Rule 32. There are three (3) instances when the court can appoint a commissioner even without the written agreement of the parties or even over the objection of the parties.

Before the commissioner sets the date of the hearing. In short. Supposing there are three (3) issues raised. So that in what he can do (underlined provision) if he is not restrained by the order. Example: A vs. Q. Q. Submit the report to the court. and for the filing of his report. 10 Rule 32 Upon the filing of the report. As a matter of fact. What shall be done with this report upon the filing of these comments/objections or upon the expiration of the period of the filing thereof? A. he can do. he can rule on the admissibility of evidence. and may direct him to report only upon particular issues. or to receive and report evidence only. What is the duty of the Clerk of Court upon receipt of this report? A. the clerk shall forthwith furnish the commissioner with the copy of the order of reference. The court may refer the reception of evidence with regard to the case in its entirety. the commissioner has and shall exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He will now prepare a report. the parties shall be notified by the clerk. he can submit his findings of fact. So. The order may specify or limit the powers of the commissioner. the court will resolve the report. That is why this is governed by this rule. The report is not binding on the court. the clerk shall forthwith furnish the commissioner with a copy of the order of reference. he may even resolve the objections to the admissibility of evidence. if the specific issue for instance is the only matter in connection with which he is authorized to receive evidence.71 Q. which is referred to the commissioner. so he will conduct the trial. let’s say only of issue #1. swear witnesses and unless otherwise provided in the order of reference. After the hearing. The trial or hearing before him shall proceed in all aspects as it would if held before the court. They can do this within ten (10) days from their receipt of the copy of the report. the exhibits if there are any. He may issue subpoenas and subpoena duces tecum. Objections to the report based . That is what referred to here as the ―order of reference. The Clerk of Court is mandated to furnish to the parties A and B copies of the report. Q. What then is the authority of the commissioner? A. Subject to the specifications and limitations stated in the order. if they so desire. B. either to approve the report or disapprove the report. recommit the report to the commissioner or require the parties to present their evidence either before the commissioner himself or before the court itself. What the judge can do. Sec. It is as if he was the one who evaluates the evidence. 3 Rule 32 When a reference is made. Conference must be held not later than ten (10) days from his receipt from order of reference. and may fix the date for beginning and closing the hearings. What shall he now do? A. What is this report all about? A. it is merely recommendatory. What is the first then that the commissioner does when he receives the order of preference involving parties to a conference? A. If he is not prohibited by the order of preference. The report concerns the proceedings that were conducted before him. The court may refer this case to a commissioner for a trial of. the commissioner conducts the hearing as if he were a judge. generally. Q. the parties will appear before him. The order of reference here is the order issued by the court appointing a commissioner and stating the commissioner what he is supposed to act on. and they shall be allowed ten (10) days within which to signify grounds of objections to the findings of the report. What is meant by this? A. this issue is the one. What for? A. When a reference is made. Q. Q. Q. So that A and B can make their comments on the report of their objections to that report. he may rule upon the admissibility of evidence. So. In effect. the commissioner here would be acting as if he were a judge actually trying the case. So. So he finishes the trial. The court will now set the report for hearing. he forwards then to the court the entire records including the transcripts of the proceedings. then it is only in respect to that issue he may receive the evidence. or to do or perform particular acts.‖ Sec.

‖ Meaning. Y and Z. 11 Rule 32 72 Upon the expiration of the period of ten (10) days referred to in the proceeding section. therefore the complaint must be dismissed. The court has options in ruling on this demurrer to evidence. it’s not my duty anymore to prove my defense. You cannot compel him because a party has to choose the evidence he presents. Y and Z and the document exhibits ―A‖. Q. ―B‖ and ―C‖ even if given all their weight they are utilized to is not simply sufficient to prove the case of A. for instance. Court: ―Exhibits ―A‖. Court: What is the ground? B: ―Bahala na kayo judge!‖ You must state the ground for objections so that the court may rule on whether the objection is proper or not. to prove…. your Honor. to prove the following. ―B‖ and ―C‖ are admitted. no power on earth can compel him. But instead of immediately saying. Then he have exhibits ―A‖. Q.‖ he wants to test whether the evidence of A is sufficient or not. The evidence of A is insufficient. In our example. if he (B) does not want any evidence. Q. But this order of dismissal may be appealed by A. or recommitting it with instructions.‖ Court: What does B say? B: ―I have no objection. From the point of view of the court. A has no further evidence to adduce. So the court will overrule the objection. The complaint of A is dismissed. but the ground raised is improper. ―C‖………. I now present formally my documentary exhibits. Q. He cannot be compelled. your honor. You cannot say. other than objections to the findings and conclusions therein set forth shall not be considered by the court unless they were made before the commissioner. ―I object‖ and then sit down. So. because an objection may be proper but the ground is improper. So after these three (3) (X. or requiring the parties to present further evidence before the commissioner or the court. Q. This is the reason why the objection should always be stated with its respective ground. ―I have no more testimonial evidence to offer. Therefore. A will say. It may deny the demurrer to evidence. Rule 33: Demurrer to Evidence Q. Why ―if he wants to‖? Because he (B) may not like to present his evidence. it is now the turn of the defendant to present his evidence. The objection can be ruled upon only on the basis of the ground relied. A said ―I now rest my case. It is now the turn of B to present his evidence if he wants to.‖ Court: What does B say? B: ―I do not have any objection. after which the court shall issue an order adapting.. or rejecting the report in whole or in part. the evidence of A is sufficient prima facie to support his case. Your honor. It is proper to object. it is the duty of A to discharge the burden of proof and since he failed. What is now the next thing for B to do? A. A finished presenting his evidence. The court may grant the demurrer. The evidence of A consisting of the testimonies of X. What then would be the effect of grant? A. What is the situation contemplated by this rule? A. he simply says in effect. it is useless for me to present my evidence because under Rule 133. his witnesses are X.‖ Q. (Thereafter the court will decide the case. What is the implication of its denial of the demurrer to evidence? A. What legal device is he allowed to utilize? A. This is the assumption when B files the demurrer to evidence. the report shall be set for hearing. So. After the plaintiff has rested its case. What is the implication of the order of the court granting the demurrer? A.‖ Court: ―Proceed A‖ A: ―I offer. (When you object always state the legal ground. What is the concept of demurrer to evidence? A. .‖ Or ―I object to Exhibit ―C‖. Sec. ―B‖ and ―C‖. Y and Z) finished testi fying.) RENE NOTES: * Refusal of witness to testify or give evidence – deemed indirect contempt of the court which appointed the commissioner.upon grounds which were available to the parties during the proceedings before the commissioner. the following exhibits: ―A‖. When B files a demurrer to evidence. It is a pronouncement by the court that the evidence of A is not sufficient to prove his case. ―I will not present any evidence. ―B‖. modifying. he (A) will formally offer his documentary exhibits. Demurrer to evidence.

What is the answer of B? A. (b) if demurrer was without leave of court. it will decide the case on the basis of the plaintiff’s evidence with the consequence that the defendant already loses his right to present evidence. 3. defendant will present his evidence. he in effect submitted the case for decision solely on the basis of the evidence of the plaintiff (A). if court denies the demurrer (a) if demurrer was with leave of court. because by electing to file the demurrer to evidence. he said. RENE NOTES: DEMURRER TO EVIDENCE * it is presented after the plaintiff has rested his case * the ground is based on insufficiency of evidence TWO KINDS OF DEMURRER TO EVIDENCE CIVIL CASES 1. That a judgment be rendered against B to pay the amount of promissory note. MOTION TO DISMISS * presented before a responsive pleading (answer) is made by the defendant * it may be based on any of those enumerated in Rule 16 CRIMINAL CASES 1. The complaint alleges in substance that A extended a loan to B as evidence by a promissory note signed by B. No. What is his (B) prayer now? A. No res judicata in dismissal due to demurrer. the period for the payment thereof having already become due. What is the effect of the reversal order of dismissal on the right of B to present his evidence? Can he present his evidence or not? A. accused may present his evidence. Judgment of acquittal is not appeallable. If the plaintiff appeals and judgment is reversed by the appellate court. ―in the event the demurrer to evidence is granted and the order of dismissal is reversed. You cannot reserve the right to present evidence in the event the order of dismissal is reversed on the appeal. Q. Before that. Q. Rule 34: Judgment on the Pleadings This rule presupposes that the answer of the defendant does not tender any issue. Q. the order of dismissal is reversed. What is now the prayer of A? A. Q. reserved the right to present my evidence. The trouble arises when the order says. if court denies demurrer. The judgment of dismissal is appealable by the plaintiff. What is the implication of that? A. So. But supposing in our example at the time B filed the demurrer to evidence. the order of dismissal is set aside. B denies all the allegations in the complaint. Q. 2. B. defendant need not ask for leave of court 2. the order of dismissal is improper.73 The possibilities are. the complaint remains dismissed. accused can no longer present his evidence and submits the case for decision based on the prosecution’s evidence. if the court finds the plaintiffs evidence insufficient. A copy of that promissory note is attached to complaint as Annex ―A‖. Is there an issue tendered by the answer of B? . double jeopardy sets in. He cannot present his evidence. The implication is.‖ Q. And so. Q. 3. Therefore. it will grant the demurrer by rendering judgment acquitting the accused. if the court finds the prosecutions evidence insufficient. that the evidence of A is sufficient to prove his case. the appellate court may affirm the order of dismissal or it may reverse the order of dismissal. it will grant the demurrer by dismissing the complaint. This is an action for recovery of sum of money. Example: A vs. Will this reservation allow him to present his evidence? A. the answer against the material allegations in the complaint. it simply means that the appellate court agrees with the trial court that the evidence of the plaintiff is insufficient. That the complaint of A be dismissed. leave of court is necessary so that the accused could present his evidence if the demurrer is denied. B has not paid the loan notwithstanding demand on him to do so.

Will the court receive evidence either for A or B before judgment can be rendered? A. This is how the judgment on the pleading is rendered. the decision must always state attorneys fees awarded the basis thereof. which is not formally offered in evidence. Q. nullity of marriage 2. was there a specific denial of the allegations in the complaint? None. 2) allege the facts in support of his denial. Again. Rule 35: Summary Judgments Q. Did B complied? A. The reception of evidence is governed by Sec. An admission of all the allegations. So. there is nothing to be proven by A here. however. but there is no proof of this amount of the unliquidated damages. part of which he denies. the rule require the defendant to do any of the following: 1) specify the matters he denies.Material facts of the complaint shall always be proved. If the allegation is made up of two or more facts. 34 of Rule 1331 (Presentation of Evidence). This kind of denial is the effect of the specific denial.… Q.A. There is one limitation. In the absence of that justification. This is a general denial. Q. where damages. because to do so would be to make prejudice on the right of A. What is the concept of summary judgment? A. everything is already admitted. when a judgment is rendered. to be specific. We have a rule with respect to attorneys fees that. you have to prove the amount thereof. not every litigant who prevails in the case is entitled to attorneys fees. A may now file a motion that a judgment be rendered on the basis of only what is alleged in the complaint. Can there be a judgment including damages and attorneys fees done in which case if the plaintiff wants a judgment include attorneys fees and damages he must produce evidence? A. Q. the rule requires him. Under the rule on denial. which is rendered by the court on motion of a party. In the absence thereof. part of which he admits. In a summary judgment. no award of attorneys fees can be rendered unless the attorneys fees is considered as liquidated damages. he now admits for his failure to deny under oath the promissory note. Either the plaintiff or the defendant. a judgment is rendered on the basis of evidence which is not receive in the manner that evidence is received under Rule 30 (Trial) Remember that we took up in Rule 30. the court will decide the case. What is the effect of failure of B to deny under oath the genuineness and due execution of this document? A. In other words. he is required to state that he has no knowledge sufficient to form a belief as to the truth of the allegation in the complaint. This kind of denial is the effect of the specific denial. 3) if he is not in a position to state whether he admits or denies the allegations. No more. the basis thereof must be stated in the decision. In this case. Q. There is no reception anymore. you cannot render a judgment of the pleadings on damages. Why? Because for a specific denial. In this case. What is the effect of a general denial? A. either of the plaintiff or the defendant where there is actually no genuine issue between the parties. He is deemed to have admitted the genuineness of the note. Who is entitled to a summary judgment? A. For attorneys fees to be awarded. No. 74 . which are not liquidated are alleged and attorneys fees are also asked to be paid. in the case of unliquidated damages. A summary judgment is one. thereafter. annulment of marriage 3. RENE NOTES: What cases not applicable: 1. there is evidence received but it is evidence. the defendant must assert his evidence. a plaintiff must present his evidence. Q. with respect to judgment of the pleading. specify so much of the allegation that he admits as true and deny the rest. So. legal separation . Since the promissory note is an actionable document because that is the basis of the action of A.

In the case of the plaintiff. What is the prayer now of A? A. A sent a request for admission to B. What does A do with this motion to which are attached these documents? . That B did not pay the loan. the failure of B to pay. so that even without a formal presentation in evidence by A and B. the fact that X went to B to demand payment and the answers of B to the demands of X. ―I cannot pay A because I was not able to harvest any tobacco leaf. To B. the request for admission. the affidavit of A. Q. Q. B said. Why did I not harvest? Because I did not plant!‖ This is the deposition. What did X say in his deposition? ―I was asked by A to go to B and collect from him the amount covered in the promissory. The period for payment of the loan has already expired and demands notwithstanding. What is the remedy available to A. Annex ―A‖. B (For Sum of Money) The allegations in the complaint are substantially as follows: A extended a loan to B. he already paid the loan. Q. Q. What does A now do with these papers? A. that he signed the promissory note. Q. When? After an answer to his claim has been served on him.‖ I went back to B on the date he specified. That you told him that you will pay me after you shall have sold the tobacco leaves you expect to harvest from your farm. B denies the allegations in the complaint that he obtained money from A. the plaintiff who has a right to a declaratory 75 Example: A vs. If there was any loan extended to me (B). B failed to pay the loan. this is the remedy available to A… Let us say A takes the deposition of X under Rule 23. What is his (B) defense? A. What is the answer of B? A. Q. the defendant who has a counterclaim. a trial should be held during which A and B are to prove their respective sides of the issues. B signed a promissory note to evidence the loan. Q. Q. Under Rule 35. and That he went back to you on the specified date and you told him that you cannot pay me because you have not planted any tobacco in your field That you do not have any receipt showing that you paid any amount. (defendant) Greetings! You are hereby requested to admit the truth of the following statements: That X went to you to demand in my name that you pay the promissory note. 1) 2) 3) 4) Q. A now has in his hands the deposition of X. A now executed an affidavit. That B did not send A within the time mentioned in the request any denial under oath of the matters referred to in the request. From the face of the pleadings. ―Tell A that I will pay him after I have sold the tobacco leaves I expect to harvest from my land. That B indeed signed the promissory note. But the truth however is this: That A indeed gave a loan to B. That the demand was made. What do you notice now? A.‖ B replied to me. What is the content of the affidavit? A. a judgment may now be rendered in favor of A? A. there are issues: 1) Did he (A) extend the loan? 2) Did he (B) sign the promissory note? 3) Did he (B) pay if there was a loan? Under Rule 30. Q. The matters related to the law. He will attach them now to a motion in which he prays for a summary judgment. That judgment be rendered ordering B to pay him the amount of loan.relief may file a motion for summary judgment. What do we learn about the request? A. execution by B of the promissory note.

76 A. In the case of the plaintiff. it was the plaintiff alone who filed it. When will A file his motion for summary judgment? A. No evidence shall be considered unless the offer is made and the purpose of the offer is specified. Q. but they were introduced. . Like A. Yes. Cannot B also file a motion for summary judgment? A. because on the basis only of the complaint. Only the pleadings and the documents attached to the motion and the documents attached to the opposition if there is any. What do we learn about the ―offer of exhibits‖? A. separate them and determine the facts which are not disputed. This is what the court will do: It will examine the complaint. And this is for obvious reason. Q. That is how summary judgment works.‖ Q. Q. Q. See now why it is summary. a summary judgment can be effected. Q. the pleadings and the documents attached to the pleadings and motions and oppositions. In our case. he can now file a motion for summary judgment? A. documents attached to the motions and oppositions and finds that they are disputed and therefore cannot render a judgment on the call of the motion. no! He does not have to file the answer. how can A determine whether there are issues generally raised if there is no answer which have been filed. the answer. the motion for summary judgment and the documents attached thereto. Because there is no reception of evidence if the court finds from the pleadings that a judgment can properly be rendered in favor of the plaintiff. the rule says. they were not formally offered. How will the court proceed to hear the motion? A. Does that (―at any time‖) mean that even before B has served his answer on A. What now would be the basis of the judgment? A. Q. Yes. Why? Because between the filing and the hearing. in addition to examining the records shall determine what are the facts that are not substantially disputed. then the court will render a judgment in favor of the plaintiff. What shall the court do? A. What shall B do after he have been served? A. The court will now hear the motion. he cannot file the motion for summary judgment until he has been served the answer. a period of not less than 10 days must first elapsed to allow the defendant to file his opposition if there is any to the motion. which is not earlier than 10 days following the filing thereof… Q. Did you notice in our example whether these documents attached to the motion or to the opposition were personally offered? A. On the appointed day of hearing. No. But in the case of the defendant. It means to say. What will B do with the opposition? A. he may also support his opposition with his sworn affidavit. Why? Because you cannot hear the motion for summary judgment within 10 days from its filing. here the purpose was not specified. They are merely attached. deposition. a motion should be heard not later than 10 days after it is filed. ―at any time. He will file them and serve a copy thereof on B at least ten (10) days before the hearing of the motion. But if the court examined the pleadings. This Rule 35 is an exception to the Rule 15. the opposition if any and the documents attached thereto. The court will examine both and if the court find from the documents. he may also file an opposition to the motion for summary judgment. that a motion for summary judgment being litigated must be set for hearing strictly in accordance with Rule 15. This is the distinction between a motion for summary judgment on the part of the plaintiff and the motion for summary judgment on the part of the defendant. the court finds that except to the amount of damages the plaintiff is entitled as a matter of law to a judgment because the issues raised are not substantial but they are merely sham. Note that under Rule 15 (Motions). then the court will. Q. If he (B) so desires. Here there was no purpose. thereafter the court will conduct a trial on the matters that are disputed and thereafter render the judgment. or other documents. After B has served his answer on A. Naturally he must file it with the court and serve on A a copy later on. Q.

Summary judgment for claimant. The right to file a motion for summary judgment belongs both to the plaintiff and the defendant. The judge for instance. for declaratory relief SUMMARY JUDGMENT * based on the pleadings. The only difference being that. * there is no issue or there is an admission of the material allegations. counterclaim or cross-claim or to obtain a declaratory relief may any time after the pleading and answer thereto has been served. Can B file a motion for summary judgment on this counterclaim? A. RENE NOTES: * Summary Judgment is especially applicable to special civil action for declaratory relief. admissions for summary judgments in his favor upon all or any party thereto. * 3-day notice rule applies * on the merits Rule 36: Judgments. The mechanical act of writing a decision can be delegated to a third person. admissions and affidavits * available to both plaintiff and defendant * there is no genuine issue between the parties. It may also include a claim arising from a right involving a declaratory relief. No.77 A subject for a summary judgment on the part of the plaintiff is not limited to the claim he has against B (defendant). Q. Final Orders and Entry Thereof Section 1. unless the defendant presents a counterclaim. A counterclaimant. if presentation is required * available to plaintiff * generally available only on the plaintiff. B has a counterclaim against A. Q. stating clearly and distinctly. he can file his motion for summary judgment at any time even before he serve his answer. Q. signed by him and filed with the clerk of court. What will be the procedure? A. Q. evaluate the evidence and then write the decision. The same procedure that may be adopted by A if he files a motion for summary judgment against B. depositions. When? A. in this action for money. * Proper only in actions 1. * 3-day notice required * on the merits * no issues as no answer is filed by the defending party. How does this rule that a summary judgment may be obtained in case of a counterclaim or a cross-claim arise? A. The rule requires that the judge himself must personally prepare the judgment. after C has served on B his answer to the cross-claim. in the case of the plaintiff. with respect to the cross-claim at anytime after an answer thereto has been served on him. Section 1 of Rule 36 provides that the court must render a judgment. Yes.e. for a liquidated sum of money 3. moved with supporting affidavit. a cross-claimant can likewise file a motion for summary judgment with respect to the counterclaim. Let us suppose that B has a cross-claim against C. A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge. . In the case of the defendant. Q. depositions. Q. there may be issues but these are irrelevant * 10-day notice required * may be interlocutory or on the merits JUDGMENT ON THE PLEADINGS * based solely on the pleadings JUDGEMENT BY DEFAULT (Rule 9) * based on the complaint and evidence. Can B file a motion for summary judgment on the cross-claim against C? A. After A has served on B his answer to the counterclaim. the facts and the law on which it is based. In our example for instance. The rule requires the court to examine the records and evaluate the evidence. Does this mean that the rule requires the judge to be a typist or stenographer? A. Yes. i. to recover a debt 2. he can file a motion only after he has been served with the answer to his claim. then B can move a summary judgment on the counterclaim. come up with the conclusion and thereafter make the decision. Why? The requirement that the judge must personally prepare the judgment simply says that the judge must be the one to ascertain the facts that are established by the evidence. cannot commission the clerk of court to study records of the case. A party seeking to recover upon a claim.

the father of A. ―B‖ and ―C‖. The court should have stated in the decision the basis of its findings that A is the owner.01. Supposing the judge delivers this to the clerk of court. already signed. The stenographer thus writes the decision. Q. Dec. though signed by the judge is not promulgated. and .000. A judgment is deemed promulgated on the day the judge gives his judgment or decision to the clerk of court. it is not a judgment at all. Q.78 So. Wherefore. You have the following: 1) opinion of the court. This is what the court should have done to support its conclusion that A is the owner of the land. What are the parts of the judgment? A. which supports the conclusion of the court? A. X paid the taxes of this land. Those statements after the findings of fact. That is a conclusion brought on the evidence. The judge examines the evidence hereafter arrives at a conclusion. Is this a decision that must be personally prepared by the judge? A. Y and Z. because the rule does not require he (judge) would be the typist or stenographer. ―2‖ and ―3‖. Q. Is that a findings of fact? A. A judgment should be in writing. On this day. the issue is whether A is the owner of the land in question. 1998. Q. Yes. No. Q. It’s the delivery of the judgment to the clerk of court that constitutes its promulgation. 2) dispositive portion of the judgment. When is judgment deemed promulgated? A. (Exhibit ―B‖) A has been in possession of this land until he died 1980. The rule does not require him to make a conclusion of facts. So what does he (judge) do? A. you can infer why A is the owner. Unless it is in writing and signed by the judge Q. what will be the basis of his assigned error when there is nothing in the decision for which an error may have occurred. 3) date of judgment. Exhibits of A are Exhibits ―A‖. but kept his judgment on his chamber. (exhibit ―A‖). judgment is rendered declaring A the owner of the land and ordering B to surrender its possession to A. The rule further requires that the judge must make in his decision the complete findings of fact. the court finds that A is the owner of the land. So. his son. Thereafter the judge signs it. Dec. No. Q. dated and signed by the judge .‖ Q. This is what the court wrote in the decision… ―After going over the evidence presented by A and B. Evidence of B consisting of the testimonies of C. He now calls on his secretary or his stenographer and dictate to the stenographer. So that when B for instance. After the death of X. For instance. The court further orders B to pay A in damages in the amount of P1. it is no judgment … Q. 1998. What the law requires him to do is to make a finding of facts. this is how it is done. 1. Q. In our example. from this. and dated. A. For instance. Why? Because a judgment is supposed to be in writing and duly promulgated. is there anything said in the decision. Why? Because it has not been delivered to the clerk of court. Q. What is meant by this (complete findings of fact) ? A. The court now assesses the evidence of A consisting of the testimonies of X. Exhibits of B are Exhibits ―1‖. took possession of the land. It Is the filing of the judge with the clerk of court that constitutes the promulgation thereof . There’s nothing. appeals from the judgment. D and E. In this example. it will say. This land is covered by a Certificate of Title in the name of X. otherwise he would not have devoted so many years of his life studying law only to become a typist or a stenographer. Supposing the court promulgated a judgment in open court. Those are supposed to be stated. Is this a judgment within the meaning of Rule 36? A. A complete finding of fact presupposes that the court has studied the evidence and found out what the facts that have been established in by the evidence. 1.000. What would have been the findings of fact here? A. ―the evidence shows that this land originally belonged to X. When is the judgment deemed to have been promulgated? A. No. As long as the judgment. the court render judgment in favor of A. is that a valid judgment? A.

the counsel for the accused moved that the private counsel be disqualified on the theory that private counsel cannot appear for the state unless the public prosecutor has authorized him to do so. the counsel for the private party is required to first secure the authority of the fiscal before he can proceed.000. The opinion of the court consists of the findings of fact of the court. One with respect to A and B and the other with respect to A and C. Let us say. The court rendered a decision. they argued a promissory note in favor of A for P500. the court will limit its judgment to the amount of P250. it is B. Since the public prosecutor was not in court and there was no authority of the private counsel to represent the state he has brought to present the evidences of the state. After arguments.00. the case against the others may be held in abeyance and thereafter. Q. The liability of B and C is joint.000. Is it possible that there be a contradiction between the opinion of the court and the judgment of the court? A. What is meant by the opinion of the court? A. However. ―Wherefore. the judgment that may be rendered here will only cover the liability of B to the extent of P250. so when the court renders its judgment with respect to C. Because there was no prosecutor representing the state. There are two judgments. What’s the concept of several judgments? A.79 4) promulgation Q. The private counsel appeared for a preliminary investigation.0 corresponding to the liability of C. Since the liability is joint. Yes. A. Its findings of facts would be the basis of dispositive portion of the judgment. the discussion and the opinion points to this conclusion that A is the owner of the land. Q. . It says here… ―WHEREFORE.00 which pertains to C. For instance.000. in the jurisdiction of the court. the court hereby renders judgment declaring the owner of the land.‖ This is the judgment. In case like this. the judgment will be limited only to P250. In the case of several judgments. Let us assume that A prosecute his case against B only because in the meantime C although sued and inspite his answer in that in the meantime. (joint) a judgment may be rendered against one or some of them in the meantime. The owner of the cow supposedly stolen engaged a private counsel. Q.‖ You will notice that there is a discrepancy between the opinion of the court and the dispositive portion. he is not the owner. What now is the judgment of the court here? A. The first part of the judgment is the discussion of the court of the evidence. what becomes of his case in so far as A and C are concerned? A. 000. Whereas the opinion of the court the discussion of the court. it is possible. So what do you notice here? A. In the meantime that this case against B is being heard.000. another judgment may be rendered. Q. B. Example: A is the creditor of B and C. So this case by A against B can proceed to finality. This is the adjudication of the issues of the parties. the court hereby declares B the owner of the land and dismisses the complaint. there are two or more defendants and the liability that they have with respect to the obligation is joint. So the court rendered a judgment against B in favor of A. When C is back in the Philippines. in our example here. (Notice that the opinion varies with the dispositive portion. This reminds Judge Laggui of an incident where the counsel for the accused appeared for preliminary investigation in the case of theft of large cattle. and in the dispositive portion. It is that part of judgment or decision which adjudicates the rights of the parties. Yes. So the court tries the case with respect to B only. vs. Its suspended. For instance. it will not affect the other P250. from its discussion the court concludes that A is the owner of the land. The dispositive portion should prevail) Q. Q. So the court can tender a judgment at here. Can this be done? A. A is the owner. But the dispositive portion says. the court ruled the motion to disqualify the private counsel is denied. Supposing. the court may now hear the case against C and another judgment may now be rendered.

for instance. leaving the action to proceed against the others . So if the obligation of B and C is solidary. if the entity is sued as X. Example: The causes of action of A are 1. Then the court will render a judgment on this third cause of action. Q. upon determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim. . the court will hear this third cause of action. what are several are the number of defendants. 3. So. So here.80 So we call these judgments here several judgments. So how many judgments now do you have? A. In this case of separate judgments. may it be executed or may be the subject of an appeal? A. Can you have this case? A. Thereafter. the names of the individual persons who made that namely X. Q. This is what is meant by separate judgment. after the judgment in the first two causes of action has become final. what is the difference between a separate judgment and a several judgment? A. B has several defenses. 6 Rule 36 refers to a case when the judgment involves an entity which has not juridical personality. Y and Z. if known . 2. this cannot be done. the court may. permissive counterclaim against A. This applies only where the liability of the defendant is joint and severable. If the liability is solidary. Q. You remember the rule that entities without juridical personalities may be sued but when the answer is filed. 6 Rule 36 When a judgment is rendered against two or more persons sued as an entity without juridical personality. the judgment against X. Marketing. the court may order its enforcement until the rendition of a subsequent judgments and may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the judgment is rendered. Q. Y and Z are sued as an entity but they do not have a separate juridical personality. The court may conduct a trial with respect to these first two causes of action holding in abeyance the hearing on the third cause of action. the court. if X. then the judgment against them will set out the names of the parties making up this entity. So there are three causes of action against B. Not yet. After the court has heard all these (two causes) causes of action including counterclaims that A had been raised with respect to these two causes of action. Y and Z will be set up in the answer. The court will also hear separately the permissive counterclaim and thereafter render a judgment thereof. may render a separate judgment disposing of such claim. In separate judgments. No. Sec. Several Judgments (Sec. the names of the persons making up that entity without juridical personality must be stated. Q. You render a judgment only one. The judgment shall terminate the action with respect to the claim disposed of and the action shall proceed as to the remaining claims. what is several are the causes of action or claims or counterclaims. Q. There are three (3). This Sec. because the court may defer the enforcement thereof to await the result of the hearing of the other cause of action. So you have separate judgments. How about separate judgment. when a several judgment is a prosper. the judgment shall set out their individual or proper names. 5 Rule 36) When more than one claim for relief is presented in an action. render judgment against one or more of them. In case a separate judgment is rendered. Y and Z. Separate Judgments (Sec. at any stage. What can be done in the trial of this case? A. 4 Rule 36) In an action against several defendants. This is now what is required when the judgment is rendered with respect to group of people who will not have separate juridical personality. In the case of several judgments. What do you consider as the difference between separate judgments and several judgments? A. Then the court will render a judgment on these two causes of action holding in abeyance the hearing on the third cause of action. Marketing. So you will see that there is already a judgment on the first two causes of action. Let’s say.

What was the reason why a judgment was rendered against B? A. Promulgation – The process by which a decision is published. personally and directly prepared by the judge 2. * Attack of judgment may be direct or collateral Direct Attack a. relief from judgment. * A judgment based on a compromise otherwise known as judicial compromise has the force of law and is conclusive between parties. the affidavit of merit consists of facts constituting all the fame. Why? Any ground already available at the time the motion is filed but not alleged therein is deemed waived. Let us say. There are only two grounds for motion for new trial: 1) Fraud. annulment of judgment. the ground is FAME. At any time before the judgment has become final. Because after a judgment. 2) Newly discovered evidence (NDE). What are the requirements so that B must comply with? A. coupled with notice to the parties of their counsel. Evidence which the movant could not have presented during the trial and which if presented will probably alter the result of the cast. Q. which is prejudicial to his interest. Accompanying the motion must be his affidavit of merit. made known to public or delivered to the clerk of court for filing. Because of FAME. the motion must be accompanied by the statement of the person with whose testimony the newly discovered evidence is based. He now wants that this judgment against him (B) is set aside and that a new trial be held. he could not procure it. appeal b. Let’s say. it may be another remedy already such as petition for relief under Rule 38 but certainly. * The power to amend the judgment is inherent to the court before judgment becomes final and executory. B The judgment was rendered against B. not a motion for new trial. It should be in writing. Any of them can file a motion for reconsideration. officially announced. Procedure… now… Q. . Not appealable. All the grounds for the motion for new trial must be alleged in the motion . So this FAME resulted in a judgment. On what facts may this affidavit of merit may be filed? A. no further amendment or correction can be made by the court except for clerical error or mistakes. after finality 1. the remedy is no longer a motion for new trial. Rule 47 Rule 37: New Trial or Reconsideration This presupposes that a judgment has already been rendered either for the plaintiff against the defendant or for the defendant against the plaintiff. Q. If the ground is newly discovered evidence. It should contain a dispositive part and it should be signed by the judge and filed with the clerk of court. So there are the only two (2) grounds. Of course. This is a litigated motion and therefore should be set for hearing strictly in accordance with Rule 18. Rule 38 2. motion for new trial or reconsideration 2. Q. which resulted in the judgment against the movant. Q. After the judgment has become final.81 RENE NOTES: Requisites of A Judgment 1. Once a judgment has attained finality (expiration of the period to appeal). Accident. for instance. before finality 1. This evidence if presented will probably alter the result of the case. he must have to file a motion for reconsideration stating therein the ground(s). he discovered evidence which could either be testimonial or documentary and which evidence he could not have presented during the trial because even if he exerted efforts to procure it. What now will happen with this motion filed by B? A. the newly discovered evidence is the docu ment or a copy of the document must be attached to it. with respect to the ground. Example: A vs. Mistake or Excusable negligence (FAME). Must state clearly and distinctly the facts and the law on which it is based 3. then. Within what period the motion for new trial or a motion for reconsideration may be filed? A.

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(With respect to the affidavit of merit, in case it is the defendant who filed a motion for new trial, he should accompany his motion with a statement of a fact constituting his defense. If it is the plaintiff for instance, who filed, the affidavit of merit shall state the fact constituting his cause of action.) So, the motion now is set for hearing in accordance with Rule 15. So, the court will resolve the motion whether to grant it or to deny it. The motion may if it was established that there were FAME that resulted in the rendition of judgment against B in this example, then the motion will be granted. If the basis is newly discovered evidence and the court finds that the newly discovered evidence, then the court will grant, otherwise the court will deny. Q. What is the effect of the grant of the motion for new trial? A. The judgment already rendered is set aside, as if no judgment at all was rendered. In this example, if the motion for new trial of B is granted, the judgment already rendered against him is set aside. Q. What now is the effect of the order granting the motion for new trial on the evidence already received? A. In this case, the evidence of the party consisted of the testimonies of X, Y and Z, and exhibits A, B and C. Q. What now becomes the evidence? A. If the motion for new trial is based on FAME, the rule says, ―the evidence affected by the FAME will be set aside .‖ So if the evidence that is affected by this fraud is that coming from X, this will be set aside, only there, testimonies of Y and Z and exhibits A, B and C will remain. So the court will conduct a trial. The court may render another judgment after conducting the new trial. In deciding this case now, Q. What evidence may the court take into account? A. The testimonies of Y and Z and exhibits A, B and C. It will disregard the testimony of X. So, if another witness will testify and say E, then his testimony will also be taken into account. Q. How about these testimonies affected by B? A. If they are not affected by FAME, they will be taken into account. If there was another witness who testified, it will be taken into account. So the court will render a judgment based on these evidence remaining. This is if the ground is FAME. Newly discovered evidence, that’s the basis, let’s say, the only evidence consisting of the so-called newly discovered evidence is exhibit ―I‖ for instance and F testimony. Q. In deciding the case, what evidence should be taken into account? A. All the evidence previously presented by A, all the evidence previously presented by B including exhibit ―I‖ and testimony of F. Nothing is discovered because they are not affected by these newly discovered evidence. So, in the example the witness who already testified do not have to be recalled anymore. Their testimonies will be considered. If there are additional witnesses, their testimonies will be considered. This is how the motion for new trial is conducted. Q. How many motions for new trial may be filed? A. The general rule is, a party can file only one motion for new trial. Q. Is there an exception to this rule, meaning that more than one motion for new trial may be filed? A. Yes. When the ground of the second motion for new trial was a ground not existing at the time the first motion for new trial was filed. For instance, the motion for new trial is filed on the basis of FAME. While this motion is pending, defendantmovant B found evidence, which qualifies as newly discovered evidence. Q. Can B now file another motion for new trial based now or newly discovered evidence? A. Yes, because at that time the first motion was filed, this second ground was not yet in existence. Q. Is there such a thing as ―partial new trial‖? A. Yes. A new trial does not have to cover the entire case. Supposing there are three (3) issues in the case. Q. May a new trial be held only with respect to one of the issues? A. Yes. So, the new trial will be limited to a trial of that only issue. The judgment on the second and third issues will no longer be disturbed. Q. If there are two or more parties in one separate case, may a partial motion for new trial be granted? A. Yes. Supposing the defendants B and C, the plaintiff being A.

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Q. May a partial new trial be conducted only with respect to B and only with respect to C? A. Yes, because each of these defendants has his own right. So, a new trial is conducted with respect to B only, then the new trial will be limited between A and B. It will not include C. If the new trial involves only C, then the case will only be between A and C. It will not include B. Q. What is the distinction between a motion for new trial and a motion for reconsideration? A. In a motion for new trial, the grounds are those we already specified. The grounds for a motion for reconsideration are different. They are: 1) when the judgment has awarded damages which are excessive; 2) when the judgment is contrary to law; 3) when the judgment is contrary to the evidence. With respect to the reception of evidence , in the case of a motion for reconsideration, there is no reception of evidence. In the case of a motion for trial, there is a reception of evidence. So these two differ. They, however, share a common point and that is, they can be filed only before the judgment has become final. Q. Why is it, in the case of a motion for reconsideration, there is no trial anymore, all that the court does is to set aside the judgment and amend it? A. Remember the grounds: 1) Excessive Damage – all that the court does is to review the evidence and find out whether the damages are excessive or not. 2) Judgment is contrary to law – all that the court does is to review the law on that matter. 3) Judgment is contrary to the evidence – all that the court does is to review the evidence. That’s why there is no need of trial. RENE NOTES: * Fraud must be extrinsic or collateral not intrinsic. * Forgotten evidence is not a ground for new trial. Requisites for newly-discovered evidence a) must have been discovered after trial b) could not have been discovered and produced at the trial c) if presented would alter the result of the action Otherwise, it is called forgotten evidence * A motion suspends or tolls the running of the reglamentary period for appeal except when the same is pro-forma. PRO-FORMA MOTION - when it does not comply with Rule 15 and Rule 37, e.g. it does not point out specifically the findings or conclusions of the judgment as are contrary to law, making express reference to the testimonial or documentary evidence or to the provisions of law alleged to be contrary to such findings or conclusions, ans is merely intended to delay the proceedings or if there is no affidavit of merit. Rule 38 : Relief From Judgments, Orders, or Other Proceedings

Petition for relief from judgment, this assumes that the judgment has already become final. And the matter of fact that
the judgment or final order has already been entered. You know that once a judgment has become final, like in this case ……………. Let’s say, you receive the judgment in favor of A. Dec. 1, 1998. He has u ntil Dec. 16, 1998 within which to do any of the following: 1) Motion for new trial; 2) Motion for reconsideration. If he does not, one of these days until Dec. 16, 1998, as of Dec. 17, 1998, the court can no longer alter its judgment. The only thing that the court can do after a judgment has become final is to execute it under Rule 39. Of course, there are certain things that a court may do with respect to a judgment that has already become final, but not with respect to the merits thereof. No matter how the judgment is erroneous.

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So the only thing that can be done after the judgment has become final is to correct the clerical error or in a proper case, may clarify the judgment. These are the only things it can do. So, we said, that beginning Dec. 17, 1998, in our example, A can now execute this judgment. Let us say that the judgment in favor of A declared A the owner of the land. Ordered B to vacate the lot. Commanded B to pay damages of P1M. This is the judgment. Beginning Dec. 17, 1998, A can now execute this judgment under Rule 39. No matter how erroneous this judgment is, there is nothing that can be done but to execute it. However, under Rule 39, the law recognizes the possibility that B may have lost the case by reason of matters not imputable to him. For instance, the judgment was rendered against him by reason of FAME. Then the rule recognizes this. The inequity that may result to be, if this judgment procured under that circumstances will be made. So under Rule 38, the law gives B the opportunity to be relieved from his judgment. That’s why Rule 38 speaks of Petition for Relief. So, under Rule 38, if B files the petition, he will ask that he will be relieved from this judgment. That means to say that he asked that this judgment be set aside. This is the concept of Petition for Relief of Judgment There is another matter covered by a petition for review and this is a situation where a loosing party was prevented from taking an appeal therefrom. In our example, the judgment was rendered against B. After trial, there was no FAME which gave rise to the judgment. B lost. Nevertheless, he is entitled to appeal, for example, he has until Dec. 16, 1998 within which to file his notice of appeal. But he was prevented from filing the appeal by reason of FAME. So there are two things that can be the subject of petition for relief. 1) A judgment rendered by reason of FAME or a proceeding attended by FAME; or 2) A deprivation of a party of the right to appeal by reason of FAME. Q. In what court should a petition for relief be filed? Let’s assume that this case between A and B was filed in the RTC Branch 1 of Manila with Civil Case#2345. Q. In what court and in what case should B file his petition for review. A. He should file his petition for relief in the RTC of Manila Branch 1 and in the same case (Civil Case #2345). It shows that a petition for relief is a continuation in effect of the case wherein the judgment was rendered. So if the case was filed in the MTC, then this petition for relief must be filed in the MTC in the same case. There is an amendment of the old Rule 38 in the present Rule 38. Under the old rule, a judgment rendered by an inferior court (MTC for instance) and which a party thereto desires to file a petition for relief, the petition for relief must be filed with RTC. So, in our example for instance, in 1995, a case was filed against B in the MTC, Civil Case#2345, B now wants to file a petition for relief from the judgment rendered. Q. Where will he file the case? A. File it in the RTC. So the case will be now B vs. A.

This is not so now!
The court which rendered the judgment is the court before the petition for relief should be filed. Period within which a petition of relief must be filed within 60 days from the time the petitioner learned of the judgment of the proceedings and in no event beyond six (6) months from entry of judgment. Q. Is this period extendible? A. No, it is not extendible. So, if you file a petition on the 61st day following your knowledge of the judgment, that petition is already filed out of time. Q. Why cannot the period be extended? A. Because Rule 38 is an act of grace on the part of the state in favor of a party. Consequently, the party who desires to avail of this benefit should do so subject to the conditions thereof.

What do you notice here? A. What are the possibilities? A. In other words. A.‖ The court wil l now hear the case anew as if a motion for new trial was granted. He did not serve the petition to A. it does not want to hear the petition. Is the court truly bound to give due course to a petition for relief? A. How would A know that a petition was filed against him by B? A. the court after giving due course to the petition of B. Q.85 But there can be case where this period may be extended. B must present evidence in support of his petition. the court will set the petition for hearing to determine whether said petition is meritorious or is not meritorious. but after the period of filing thereof has expired. Judgment now will be whatever judgment. what did he do? A. No. So. Let us see why…… After B for instance has filed his petition for relief. . Based on these facts. may present evidence in opposition. In one case. What follows after that? A. Whether or not there is a comment or opposition. Q.‖ 2) The court found that there is FAME which resulted in the judgment and in the case. thereafter the court will resolve the petition. Is it mandatory for A to file a comment or opposition on the petition? A. the court will receive evidence addressed during the hearing so that it may be considered thereafter the court will render a judgment. A vs B. Q. then the court will dismiss it. It will now issue an order directing A to file a comment on the petition. It may happen that under the second judgment may be in favor of B now or may still be in favor of A. So. This case will be the second judgment. the court will now set the date for the hearing of the petition. the court will grant the petition. 1) The court may deny the petition. he did not know the status of the case. issued an order commanding A to file his comment. the court will first examine the petition to determine whether it is sufficient in form and substance. The judgment previously rendered is set aside. If it is not. What did he find? A. The fact that his own lawyer connived with the plaintiffs for his defeat. B now filed a petition for relief long after the judgment against him has become final. He was a victim of a fraud committed by his very own counsel. Q. So. there’s no longer any judgment to speak of. Q. What would the court do in this case? A. C. the period shall not be less than 15 days from service of the order. it is the court that serves on A a copy of the petition. So. Accompanied in this order is a copy of the petition of B. it is not B. The only time he had learned of the status of the case was when he received a writ of execution against him. the court shall hear the case as if a timely motion for new trial are granted. What now is the effect of the grant of the petition on the judgment already rendered? A. ―thereafter. He tried to investigate. Q.) . if he so desire. If the court finds that the petition was sufficient in form and in substance. it will give it due course. Let us assume in this example that the court gave due course to the petition of B. meaning. in our example. engaged Atty. the defendant after engaging a lawyer never heard anymore from the lawyer. Of course the court will grant A a period of time within which to file his comment. C connived with A. The rule says. In the absence of any period. (Did you notice in our discussion whether B furnish A a copy of his petition. Q. So it says ―there is no FAME that resulted into a judgment against B. Q. No. Q. Q. it agrees to hear it. The court allowed the petition for relief to be given course. So. Why? If A files a comment or opposition as if he does not file the comment or opposition. Atty. But if he denies due course.

the court where the petition was filed and which rendered the judgment appealed from will elevate the records tot the appellate court. What could be the reason that would justify the grant of his petition? A. So. the petition was denied or after hearing the case. the judgment has already become final. Q. So. Petition for Relief It is available only when the other remedies against a judgment are no longer available. B may file a motion for issuance of an injunction to restrain the execution of the judgment. That he be allowed to appeal. The judgment has become final. So the procedure to be followed by B would be the same as he would have followed if the petition was to set aside the judgment by reason of FAME. A will not succeed in having that judgment he executed? A. the petition to be relieved from failure to appeal is granted. In our example. a hearing on the merits of the case Rule 39: Execution. in our example. the RTC of Manila Br. So in our example. No. What is the remedy? A. Q. Q. the court may require B to post a bond in favor of A.86 There is such a thing as an injunction that the court may issue while the petition for relief is pending. What is the available remedy to B so that pending the termination of this hearing of the petition for relief. For what is this bond responsible? A. Can you avail a petition for relief? A. A already filed a motion for execution. In the meantime B filed a petition for relief. * A legal right. Why? Because you can still avail of this other remedies. Q. RENE NOTES: NEW TRIAL/RECONSIDERATION * must be filed within the appeal period. 1 Manila and petition for relief prayed that the appeal of B from the judgment be allowed. this is the last resort that a loosing party can avail o f to set aside an unfavorable judgment. he was prevented from appealing because of the FAME. B files a petition to be relieve from the fact that he was not able to file the appeal. Then when the petition is granted. or if a motion for new trial is still available: Q. the court will now elevate to the appellate court the entire records. * More on equity (Discretionary) * FAME only * Relief from judgment/order on other proceeding. then A can go after the bond. The justification was. In case damages where suffered by A as a result of the issuance of the injunction and after hearing the petition. For the purpose however of protesting also the right of A. may now be answered by the bond B posted. 1 will give due course to the appeal of B. then whatever damages A may have suffered by reason of the issuance of the writ of injunction. He wants now that he be allowed to appeal. Q. the judgment is nevertheless in favor of A. What is the prayer for that petition for relief? A. it involves also the failure of a party to appeal because he was so prevented by FAME. What is the concept of Rule 39? RELIEF FROM JUDGMENT * Judgment is final within 60 days after petitioner learns of the judgment to be set aside and within 6 months after such judgment is entered. Let’s see the other aspect of a petition for relief. So. So that if B does not pay him damages awarded to A. if the motion for reconsideration is still available. File a petition for relief. . the judgment was rendered by the RTC Br. So. Then the court will order the appeal to be given due course and that therefore. before the court restrains the sheriff from enforcing his judgment. In our example. Judgment not yet final. Q. Then what is the relief that the court would grant? A. So. B failed to file the appeal. So. the motion for new trial having been granted. * FAME * Judgment on final order * Two Hearings (a) hearing to determine the judgment be set aside (b) if yes. B is required to post an injunction bond. Satisfaction and Effect of Judgments Q. It is said.

The motion to dismiss was denied. Suppose the motion to dismiss was granted and therefore the complaint is dismissed. the order does not put an end to a case. A has only until Dec. B. From the point of view of appealability and from the point of view of enforceability…… what is a final order? A. From the point of view of enforceability. 1. This judgment became final on Dec. 1998 and B has only until Dec. But they have not done this up to this day. ―all that is to be done is to implement that judgment. Form the point of view of appealability Q. The sheriff cannot execute this except in the manner Rule 39 provides. a motion for reconsideration or a motion for new trial. 2. Why? Bec.‖ Q. Of course this is subject to Rule 38.87 A. the sheriff must follow strictly Rule 39. So in our example therefore. Can this judgment now be altered on Dec. This is not a final order from the point of view of appealability. the prevailing party. Q. 1998. there is still something to be done with respect to the merits of the case. The sheriff is the officer entrusted by the rules to execute this. This is the concept of Rule 39 (Execution). the order finally disposes the matters involved in the case. 18. You cannot appeal from an interlocutory order because by its very nature. Why? Because effective Dec. What is meant by final judgment? By final order? A. Q. In carrying out the judgment. 1998 within which to file a notice of appeal. if an order has not yet become final. after its judgment. 1998 and by B by Dec. Is this order of denial a final order from the point of view of appealability A. Is this order granting the petition appealable? A. This is the meaning of a final order or judgment from the point of view of enforceability. a final order or a final judgment is one which can already be enforced because the period for an appeal therefrom is already without an appeal having been taken. From the point of view of appealability….and 2) pay A P1M. Then we say that this judgment is final from the point of view of enforceability. No matter how erroneous this judgment is. 1998? A. No. to execute it. So. 2. 1. The rule said. Yes. In the case of interlocutory order. Final with respect to the appealability of the judgment or order. This is the general rule. Let us see…. When we say. It is always within the control of the court as oppose to a final order. What kinds of judgment or order can be executed? A. Why? An interlocutory order is not appealable.‖ This means to say that. it cannot be executed. considered in the sense with respect to the appealability of the judgment or order. Q. it can be set aside at any time. Let us say. 17. ―in a judgment. ―only a final judgment or order can be the subject of execution. Meaning to implement it. Q. A vs. Justice Regalado points out in his book the concepts in which a final order or judgment is considered final.‖ We mean to say that B should now be required to vacate the land and pay P1M to A. What makes an order final from the point of view of appeallability? A. that cannot be altered anymore. B filed a motion to dismiss. 16. What makes an order interlocutory. That is carried out in accordance with Rule 39. No more. 1998. What are the matters to be taken up under Rule 39? Q. How will this command of the court be carried out? A. All that is to be done now is to execute it. 1998. can already enforce this. . Every step that finally leads to the accomplishment or the execution of its judgment is provided for in Rule 39. it can no longer be set aside. if a judgment was received by A on Dec. This is how it is distinguished… Q. Example: The judgment commanded B to do these things: 1) vacate the land. A in our example. Q.

1. Let us take the case of order of dismissal granting the motion to dismiss. 2003. It does not put an end to a case. by action. It is not a real action. 2003. So. Q. If you were A here. Q. Q. A wants a writ of execution to be issued. 1. there was no appeal from this judgment. 1. Q. No more. Example: Within this five-year period from Dec. It can now be enforced by action. So this judgment rendered in Civil Case #2345 can no longer be enforced by mere motion. Q. Let us suppose that Dec. 1. This being a personal action. This judgment because final on Dec. A can file this action. B. Thereafter. Because an action to revive a judgment is a personal action. Your allegation would be this… That you received a judgment in your favor in Civil Case # 2345. what would you allege in your complaint? A. B will file the answer. this is the difference between a final order from the point of view of appeallability and from the point of view of enforceability. There is something else to be done after its issuance. 1998. can this judgment now against B be enforced by motion? A. Within what period can A file his action? A. Why not Zambales? A. 1998 to Dec. What do you notice? A. . So. Yes. it will be governed by Rule 4.88 In our example. That the judgment was not executed by motion within five (5) years from its finality of judgment. 2003? A. What we are talking about in Rule 39 is a final order from the point of view of enforceability . 2. 2003. 1998. What is the effect? A. He has five (5) years from finality of judgment which is equivalent to entry of judgment within which to do so. 1. Where will the action be filed? A. Sulu or Batanes. 2003 or Dec. 2003. the venue could be the residence of the plaintiff or the residence of the defendant at the option of the plaintiff. Q. A will file this motion for execution in the same court. 1. Is there a remedy by which A can still enforce this judgment after Dec. 2. The judgment has already become final in the RTC. Q. 1. pre-trial and then judgment. A now file an action against B for revival of judgment in the RTC of Sulu or Batanes at the option of A. Dec. Our assumption is. there is still something to be done with respect to the merits of the case. he (A) has up to Dec. Q. Starting Dec. all that A does to secure this writ of execution is to file a motion on the same case Civil Case #2345 RTC Manila Br. 2003 within which to file the action. 2003 is the last day of the filing period. You can enforce it if you can procure a judgment in this RTC of Sulu or Batanes. A separate action. For instance. No more. B is a resident of Batanes. 2. There is nothing else to be done on the merits of the case. Q. What does this mean? A. We said that the complaint is dismissed. Within what period can A file a motion for the issuance of a writ of execution? A. this judgment can no longer be enforced by motion. 1. it became final Dec. Let us assume that the land is located in Zambales. He has a period ending five (5) years from Dec. 1. Dec. So. 1. This is the essence of an interlocutory order. That is why it can now be a subject of the appeal. Why? Because after the order has been issued. Q. 2003 within which to execute this judgment by mere motion. Is there anything else to be done in the case after the complaint is already dismissed? A. Q. A is a resident Sulu. This judgment was not executed by motion within his five (5) years. So. Example: A vs. the order denying the motion to dismiss is an interlocutory order.

This case is still with the CA but the judgment already became final Dec. You now pray that the judgment rendered in that case be revived. there are periods fixed. ―it must be filed before the action is barred. in our example. Civil code provisions state the periods during which actions may be filed. Q. You can file in the RTC. Where will you file the motion for execution? A. You are A who would want the judgment of CA be executed. Q. No. In this example. A has a period of five years from the expiration of the original 5 years within which to file the action for revival. Q. Can you now execute it? A. So. 1998.. Let us assume that the judgment for revival is granted. Here are the possibilities…. Do you revive a dead man? A. Q. 1998. Q. Yes. Our assumption here is. He who is unconscious. 1. How? A.89 Q. Within what period should an action to revive be filed? A. Let’s take the second possibility…… A vs. What do you associate revival? Q. B RTC of Manila. Q. Revive so it can be enforced. 1. Where do you find the rule to apply whether the action is barred or not? A. But the records are still there. Dec 1. The rule says. By motion again. We are talking of a judgment. Can you now execute the judgment of revival? A. You did not execute the judgment in that revived action within the 5-year period from its entry. Civil Case #2345. CA rendered a judgment affirming the RTC judgment of the CA became final Dec. Q. You resurrect him if you can. Yes. In certain actions. Q. In effect therefore. Q. an action to revive? A. Q. 1. the judgment became final Dec. What do you do? A. 1998. 2003. Why do we call this action to enforce the judgment rendered in the civil case. 1. Q. You now can file the action within five years again. which can be enforced or executed only after it has become final and that it can be executed in the court where the judgment was rendered. in what court may you now file the motion for execution? A. the action to revive the judgment should be filed within 10 years from the day the judgment in Civil Case #2345 has become final or when it was entered. 1. you have 10 years from Dec. If you were A. Who then is revived? A. What is now your prayer? A. What do you do with it? A. the five year period ended Dec. So you can revive the revived judgment if it was not executed within the 5-year period.‖ Q. For the purpose of filing the action for revival. Within what period? A. Because after the 5-year period during which the judgment was not enforced that judgment in a sense fell into a coma. You now want that judgment in CA affirming the judgment of RTC executed. B appealed to CA. By motion also within 5 years from entry of judgment in the revival action. . Q. 1998. 2003.

no longer with the CA? A. the RTC in our example. Can the RTC now enforce this judgment of CA although the records are still there? A. the RTC can now act on the motion. Q. 15 or four (4) days after the appeal of B has been filed. Supposing these records are already turned over to the RTC and that’s already final. Yes. Yes. He will now attach them to the motion for execution. 16 within which to do any of the above-stated. 16. Will the CA issue the writ? A. what is issued by the CA is the resolution directing the trial court to issue the writ. Yes. Regalado. he will now get a copy of entry of judgment duly certified by the CA. So A has until Dec. Q. Can the court still reconsider this judgment insofar as A is concerned? A. 11? A. a recognized writer in Remedial Law opines that the CA may still issue the order directing the RTC to issue the writ although the records are already with the RTC. 1997. 1. What is the effect of this notice of appeal filed by B in so far as he is concerned? A. So. Why? Because this is a litigated motion. Now. That is only the view of Mr. 28. It will merely issue an order directing the trial court. May A file still with the CA a motion for execution? (The records are already in the RTC. That means to say that B must be notified. you distinguish between the order directing the issuance of a writ of execution and the writ of execution itself. but then this is the exception. 13. 2) Motion for new trial. *This is not a decided case. Q.90 Q. which has not yet become final be the subject of execution? A. if A files a motion for reconsideration on this judgment let’s say on Dec. But can the court still modify this judgment insofar as A is concerned after Dec. This is what happens… On Dec. Yes. and 2) Entry of judgment Of course the motion for execution filed in the RTC should be heard in accordance with Rule 15 . certified copy of: 1) CA judgment. File in the RTC a motion for execution. 1997. What will it (CA) issue? A. 16. A can file with the CA the motion for execution. In other words. It cannot modify anymore the judgment insofar as B is concerned. May not A file in the CA the motion for execution while the records are still with the CA? A. Q. Q. Q. Attached to that motion. 1997. the court can no longer touch the judgment. 11. Yes. What will A do with these two? A. but it can no longer change the judgment insofar as B is concerned. Q. Example: A vs. . A receive the judgment favorable to him on Dec. or 3) Notice of appeal.) May the CA nevertheless issue an order directing the RTC to issue the writ considering the records are already in the RTC. to issue the writ of execution. B . In this example. Insofar as B is concerned. B has Dec. May a judgment or order. What RTC issues is the writ itself. Q. the appeal here of B does not affect the rights of A up to Dec. B filed a notice of appeal. in what case then will you now file the motion in the RTC? A. because A has until Dec. So far we have been talking of execution of judgments. Justice Regalado. 1997 within which to do any of the following: 1) Motion for reconsideration. 1997. But the records of the case are not yet in the RTC. Don’t be misled by this comment on this as you may find in his book you can opine otherwise and be sustained by the SC. B received the judgment on Nov. This motion for execution is now accompanied by these two certified copies so that although the records are still in the CA. No. Q. Q. The remedy…… A will secure a certified copy of the CA judgment.

Yes. Q. Can this judgment nevertheless be executed? A. a motion can be filed by A in CA. Can the court rule on this motion of A for execution is filed. Yes. Should A file a motion for execution based on this ground? A. the period for appeal has not yet expired. A judgment is rendered against the defendant B to pay a sum of money. also as to him. None.) Now if the court issues a writ of execution pending appeal. the law requires that the order must state the special reason why the writ of execution was issued. So. Q. 21? A. 5 years Q. the prevailing party may also file therein a motion for execution. Supposing the judgment ordered the defendant to deliver A a quantity of perishable goods. which is not yet final. A writ is a command of the court addressed to a proper officer normally the sheriff commanding him to execute the judgment. In the absence of the statement in the order of what constitutes a special reason. No more. Is it only in the trial court that the motion for execution pending appeal may be filed? A. the execution of a judgment is proper to avoid these goods being lost? A. Q. Q. Q. It’s up to the court. Q. If it thinks that it is a good reason to execute the judgment is affirmed on appeal. Can A file in the CA a motion for execution of the judgment pending resolution of the case by CA? A. Yes. Q. Can A still file his motion for execution considering that the judgment is not yet final insofar as A is concerned because this will become final only as to him on Dec. they may have already been spoiled. The imminent bankruptcy of B and the fact that he was disposing his properties with evident intention of depriving A of the benefits of the judgment may be considered a specified reason. in our example. 20. special or otherwise. By that time. what will happen to these perishable goods if you still wait until the judgment become final to execute it. Q. Why? Because if you wait until the judgment become final. What is the lifetime of a writ of execution? A. Look… Is this judgment already final insofar as A is concerned? Not yet. While the case was pending. Whether the reason is good or not. he started disposing his properties. Evidently. The rule says simply that the court may issue execution for a special reason to be stated in a special order. Q. The court then will determine whether there is or there is no special reason for the issuance of a writ pending the appeal. Why? The records are no longer with the court. 1997. there will be nothing left already on the assets of B which can be levied upon to satisfy the judgment. the court has not yet lost jurisdiction of the case insofar as A is concerned. Q. Insofar as B is concerned. What is a writ? A. So the case is pending now in the CA. (It is the court that determines on a case-to-case basis. .91 On Dec. Supposing the records however. 16? A. A. A file a motion for execution. What is a special reason? A. No. Q. The rule does not say so. Q. to place them beyond the reach of the plaintiff A who obtained a judgment in his favor. the case has been appealed by B to the CA. When a case is pending in the appellate court. may it now be a special reason that because of the nature of the goods. What would be the justification for the court to issue an execution against B while the case is pending appeal? A. there will be a violation by the trial court of this Rule 39. 1997. the plaintiff is already assured of payment. Will this be a good reason? A. he can still file. So. Meaning…. Can the court now rule on this motion for execution on Dec. this is an appeal to the judgment. and the judgment become final. let’s say meat for instance. it is the court that determines. Q. were elevated to the CA on Dec. Do you find any enumeration in the rules particularly Rule 39 on what constitutes special reason which justifies the issuance of the writ of execution pending appeal? A. 15. So this is a matter that is left to the discretion of the court to determine. B is already on the verge of bankruptcy.

To the sheriff.‖ So. Wherefore. Under the new rule. Under the old Rule 39. Q. No. To whom is this writ directed? A. the clerk of court issues this writ. The clerk of court will issue in the name of the court the so-called ―writ of execution. Q. there may be a judgment commanding the loosing party to turn over the prevailing party the piece of land. There are several kinds of judgments that may be the subject of execution. Where lies the difference? A. A. any and What then was the result under the old Rule 39? If the writ was not executed within the 60-day period. In our example. What will the clerk of court do? A. 2. These are not the only acts involve in a judgment. the court issued an order directing that a writ be issued for the execution. you are commanded to execute the foregoing judgment. (Let us just take them for illustrative purposes). a writ has only a lifetime of 60 days counted from the day the sheriff received it. the writ must recite the dispositive portion of the decision and thereafter command the sheriff to implement it. What is the modification now? A. So. we now have a longer lifetime of a writ of execution. The lifetime corresponds to the period within which a judgment may be executed by mere motion. it automatically lost its force beginning the 61st day. This is the final judgment that Judge Laggui would like to discuss to us… . So.92 Example: On motion of A. This means to say that if the judgment is not executed within that 60-day period. And we could have a judgment called special judgment secured by A against B provided that B should tear down a concrete fence with B erected on a lot belonging to A. Therefore. there may be a judgment commanding a party to execute a deed of conveyance. Q. service of the writ after the 60th day would be already be an invalid service. all the writs have not been implemented. The rule says. What does this writ command the sheriff do? A. A judgment commanding specific acts to be done may involve any of the following: 1) payment of money 2) delivery of property 3) execution of deed conveyance These are among the judgments calling for specific acts. under the old rule. the party who prevailed who wants the judgment executed must again file a motion for the issuance of another writ of execution. The sheriff can enforce that within this five-year period for as long as the judgment is not satisfied within the 5-year period. Q. To pay A so much money… Q. 1998. What is a lifetime of a writ of execution? A. ( the dispositive portion of the judgment is quoted). there can be no more writ to be issued thereafter.‖ Q. Q. there could be as many writs of execution issued within the five-year period for as long as the writ was not implemented within the 60-day period. It means to say further that during this five-year period. Q. Who carries this (writ) into effect? A The clerk of court. Q. We have a judgment for instance which calls for a judgment involving special one. Q. (There is another directive there…) of the properties of B you are commanded to make up the sum of so much to pay the amount adjudged in the decision. no other writ of execution is required to be issued. a judgment was rendered by this court the dispositive portion which read. Why? Because you now have to file an action to revive the judgment. the judgment ordered B to deliver the land to A. What will the writ say? A. that writ can no longer be enforced after the 60 th day. another writ can be issued such that by the end of the 5th year. Is it addressed to B? A. It is addressed to the court personnel. So. Consequently. this kind of judgment is not any of this judgment for specific acts. Whereas this judgment has become final on this date (put the date) hence the court in its order dated so directed that a writ be issued. ―Whereas on Jan.

Q. 3) The Registry of Deeds. The remedy is this… The court will commission a third person to execute the deed in favor of A. In the case of a special judgment… Q. The difference lies in this fact. Q. No. the Registrar of Deeds will register that and cancel the title of B. B says. Province of Rizal. Improvidently issued 2. Execution is UNJUST or IMPOSSIBLE 2. What is the effect of this deed executed not by B but by C? A. 2345 Registry of Deeds Province of Rizal. ―I will not. he will rot in jail. What is the remedy? A Declare him in contempt of court.‖ Q. So he does not want to tear it down. defendant here. Q. Who will execute the judgment? Is it the sheriff? A. A vs. Can he (B) order the sheriff to do it? A. It is the party. In our example. If he does not tear it down. 2) B is ordered to execute a deed of transfer of this lot in favor of A. B. A. Q. There’s another remedy. must conform strictly to the decision or judgment which gives it life. Will you release him? A. Why? Because he must obey the judgment. Province of Rizal is so ordered to cancel the title and issue another in the name of A. That in the case of judgment involving specific acts. arrest him! Send him to jail. In the enforcement of this writ of execution. The rule says. presents to the Registrar of Deeds. the writ of execution issued to the sheriff is not accompanied by a copy of judgment. Q. No. How does this differ from a judgment involving specific acts. He himself must do it. Defective in substance 3. if B does not execute the deed. commanding him to execute a deed of transfer in favor of A. The court will simply say. General Rule: Court cannot refuse execution UNLESS: (UCNID) 1. Meaniing since he was commanded to tear down that concrete fence. 2345 in the name of B and issue another in the name of A. When will you release him? A. Q. What is the remedy under this rule? A. the deed executed by this third person C is just as good as if it were B. this deed signed by C (not by B). When he has obeyed tearing down. So that when A. How will this judgment be carried out? Let us suppose in our example. B refused to comply with this order. What can the court do? A. Q. No. the court rendered judgment the dispositive portion of which commanded the following: 1) A is the declared owner of the lot in question covered by TCT No. Judgment NOVATED by parties 4. Q. RENE NOTES: *A Writ of Execution to be valid.‖ Bahala ka sa sarili mo! Tear it down. ―I cannot do it. the writ of execution addressed to the sheriff is accompanied with a certified copy of the judgment. Judgment has become DORMANT *Quashal of writ proper when: 1. involving special judgment. But he might say. Province of Rizal is ordered to cancel the title No. B must do it himself.93 Example: Supposing in this example. Execution is enjoined 5. ―the Registrar of Deeds. Equitable grounds like a CHANGE IN SITUATION 3. It cannot vary the terms of the judgment it seeks to enforce. Issued against the wrong party . the prevailing party. But in the case of a special judgment.

political or legal condition of a person. the will of the administration. ―No. and (5) the judgment is conclusive on the relation of a person to another. conclusive on the title to the property. When the terms of the judgment are not very clear. and cases involving the relation of a person to another. 47: Effects of Judgment rendered by a Philippine Court The effect of a judgment or final order rendered by a court of the Philippines. in its discretion. Rule 39 Sec. b) In other cases. or which was actually and necessarily included therein or necessary thereto. In 1998. C said. After the trial. Judgment already satisfied 5. The rule says (1) the judgment is with respect to the specific property. that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged. not other things like damage to property pending the appeal. The judgment here is merely prima facie evidence that the testator or the person whose estate is under administration. * Supersedeas bond guarantees satisfaction of the judgment in case of affirmance on appeal. the judgment or final order is conclusive upon the title to the thing. GENERAL RULE: an order of execution is not appealable otherwise there would be no end to the litigation between the parties. is dead. the judgment or final order is. or status of a particular person or his relationship to another. a corresponding certificate of title OCT #1234. Direct or Collateral Attack against judgment SUPERSEDEAS BOND . There is a motion for execution filed by the winning party 2. Example: A filed an application for registration of title to a lot. This title now is in the name of A. with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto. or against the administration of the estate of a deceased person. 1. 2. order an execution before the expiration of the time within which to appeal provided. ―Who is the owner?‖ .‖ Q. 47 of Rule 39 groups into three (3) the actions covered by the section. may be as follows: a) In case of a judgment or final order against a specified thing. conclusive between the parties and their successors in interest of title subsequent to the commencement of the action or special proceeding. Let us assume that this judgment became final on 1978. I am the owner. (3) the judgment is conclusive to the administration of the estate. What does the rule say with respect to the judgment that may be rendered in these cases? A. * The court may. or in respect to the probate of a will. cases involving the political. When the order of execution varies with the tenor of the judgment * A revived judgment is a new judgment thus another 5/10-year period to execute and revive is given the party. the probate of a will granting a letter of administration shall only be prima facie evidence of the death of the testator or intestate. ―I am the owner‖. c) In any other litigation between the same parties or their successors in interest. The LRA issued the decree of registration pursuant thereto. (4) the judgment is conclusive on the personal. There is a notice of said motion to the adverse party. EXCEPTIONS: 1. A said. 1) 2) 3) 4) 5) Q. however. You will note that Sec. litigating for the same thing and under the same title and in the same capacity. It can be proven that he is alive. legal and personal condition or status of a person. The first section covers: cases involving title to specific property. Only B opposed. The judgment became final. and 3. (2) the judgment is conclusive on the probate of the will. issued without authority *Remedies of the Losing Party 1. status or relationship of the person. judgment was rendered confirming the title of A.Petition for relief (Rule 38) or 2.94 4. cases involving probate of a will. C now files a case against A for recovery of this lot. There are good reasons stated in a special order after due hearing. or to the condition. having jurisdiction to pronounce the judgment or final order. What is the issue? A. cases involving the administration of the estate of the decedent. There is only one exception to this rule that judgment is not conclusive.one filed by a petitioner and approved by the court before the judgment becomes final and executory and conditioned upon the performance of the judgment appealed from in case it be affirmed wholly or in part. and that is when it comes to the probate of a will or the administration of the estate.

This what is meant by conclusiveness of title. No. in the will. the will was admitted for probate. because that was into the intrinsic validity. no longer matters!!! This is the meaning. that the will was signed by X? Never mind. This is the meaning. then he can recover. A judgment involving the political. the judgment binds not only A and B but the whole world including C who was not a party. So. as to whether the dispositions in the will are valid or not. presented in evidence the judgment of the court in that Registration case. However. Example: A sues B for compulsory recognition as a natural son of B. A now was sued involving this will now. So the issue is: Is A the son or not of B? . the admission of the will in probate is merely prima facie evidence that T died. Q What is meant by this? A. The judgment becomes final on Dec. I am not bound by the judgment. Q. This means to say that the will was validly executed as to the form. Will the court decide that in the probate? A. so that the will he executes shall be valid. Yes.‖ Exhibits ―A‖. But if he simply says.‖ (even if it was actually signed by X.‖ Court: ―Objection overruled.. ―the will was signed by T. You know that under the New Civil Code. Probate of Will The rule says. Example: Here is the will of J. Can the question of forgery of this will be raised later on? A. the law says. After his will was admitted on probate. the testator said. Why? Because under Sec. they must be acknowledged by the testator and the attesting witnesses before a notary public. legal or personal condition of a person. 47 Rule 39. ―I am the owner. or his relation to another is conclusive as to such personal condition. Here now is A who filed a petition for the probate of the will.‖ Court: ―What does B says?‖ C: ― I object on the ground that I was not a party to the case.95 During the trial. but in another cause of action. He should have intervened. This means to say therefore that his will was signed by the testator. But supposingly. status or relation. If C has any claim over this lot. and i. Of course. Q. ―the judgment in that registration case is pertaining to as it does to a specific property is conclusive on the title. Here. Supposing that he can show that the ownership of the land later on pass from A to him. as contended by B. B denied the claim of A that he is his son. The parties thereto being only A and B. that is not decided. this does not mean to say that C may not be able to recover this lot. No more. the truth is. Never mind!) Under Sec. That means to say that C cannot be declared the owner of that land. So for instance. ―I signed it!!!‖ Whether he did actually or not. B now says that this will was a forgery because the signature was affixed by X without the knowledge of T. Then all claims over this land that were not presented were deemed extinguished when the judgment was rendered. 1. A says. But. Why? Because the ownership was already decided with finality in that case. Q. Because the judgment in the probate proceeding is conclusive that this will was validly executed. This is what is meant by conclusiveness of the judgment in a case involving title to specific property.) What is decided in the probate of the will is merely the question of whether or not the will was executed in accordance with the formalities required by law. The court admitted the will in probate. 1999. ―I have all these properties described as follows to my #2 for services rendered…‖ Q. he should have filed his claim during the registration proceeding. Yes. Therefore.‖ So. Is the ruling of the court correct? A. 47 (a) Rule 39. So. ―the will must be signed by the testator at the end thereof and on every page on the left side. ―B‖ and ―C‖ to prove that I am the registered owner. Exhibits ―A‖. This is not decided. (D on’t forget that what is decided in a probate case is not the merits or validity of the dispositions in the will. He did not. this being a proceeding in res. the certificate of title issued in that case. No! He may recover. and the decision. A now the defendant. each page if the will consists of more than one page be numbered and that the will must be attested by three attesting witnesses. The law says. This means therefore that the testator signed the will. a judgment in a probate case is conclusive as to the probate. Why? Because the presumption is that T is dead is rebutted by his appearance. legal or political condition.‖ These are among the many formalities that the testator must have to follow. E. ―I offer your honor Exhibits ―A‖. there is a qualification here. there are certain formalities that must be followed by the testator so that the will will not be valid. ―B‖ and ―C‖ are admitted.‖ On his own right deriving his title from A. that title of A cannot be challenge anymore in any proceeding. can it later be proven that T is still alive? A. ―B‖ and ―C‖ respectively.

it’s either heirs of B against A or Heirs of B against heirs of A. heirs of A. No more. This question cannot be litigated again. B’s heirs said ―We are the owners.‖ Issue: Who are the owners? Q. Example: If you kill a cow or a carabao and you want to eat the flesh. What is the issue? A says. A’s heirs wants to recover. ―I am the owner. in Sec. It simply means that where an issue has already been decided in one case. And if a litigation is brought involving the same issue. Can this be decided in this case? A. Q. You cannot place the status of a person in a state of uncertainty because if he (A) is now the son of B. B presents his evidence to prove his ownership. You cannot litigate again for the same issue. B or heirs of B vs. the parties are the same. This is the evil sought to be avoided by this rule.‖ The judgment became final on Dec. This is what is meant by the conclusiveness by the judgment in a case involving the relation of a person. What is the nature of the action? A. A’s heirs. Res judicata is a ground for motion to dismiss. Because their heirs merely stepped into the shoes of A or B respectively.‖ B says. Can the relationship of A as a natural son be litigated anew? A. Q. But the heirs of B alleged that A is not a son of B. Q. A is the son of B. How many fathers now does A have? A. in order that this second case will not be tried anymore on the merits? . 47 (a) Rule 39 is binding. Judgment: ―A is the owner. ―I am the owner. In both cases. that which has been adjudged in a case or any matter that could have been raised in relation to that matter that has been adjudged is conclusive between or among the parties and their successors in interest by title subsequent to the commencement of the action or proceeding litigating for the same thing under the same capacity under the same title and in the same capacity. the court said. conclusive and cannot be altered. the judgment rendered in the first case may now be pleaded in the second case. the heirs of B. ―‖B is the father of A. B died succeeded by his several children. A vs. 10. Since B has an estate. The subject matter is the same – the land. So. file a case against A or if A is not alive.‖ So. B for reindivicacion. Why are the parties the same when A and B are dead and the parties litigating are just their respective heirs? A. the issue is: ―Who is the owner?‖ Trial… A presents evidence to prove his ownership. 1994. Q. what do you do? You skin the carabao or the cow. A alleged that he is the natural son of B. The judgment rendered in the first case on the issue of ownership is binding on all the parties in the second case. Q.‖ A’s heirs said. The judgment in any of these cases mentioned. You can litigate an issue only once. If these were the situation. ―We are the owners. what is the remedy available to A or the heirs of A. There is logic here… Supposing the heirs of B if allowed to prove that A is not the son of B. Can you skin the same animal twice? You can skin it only once. In 1995. Example: A vs. Q. What did you notice here? A. The cause of action is the same. Q. Sec. they may now introduce evidence that A is the son of C and the court believes that C is the father of A. Issue: same – ownership. where will this end? So there can be as many fathers as can be proven… This is not allowed. A sued the heirs of B. That which have been decided in another case involving the same subject matter. Q. that issue cannot be litigated again. Why? Because that judgment toward this issues which has been raised and decided is already conclusive and can never be changed anymore insofar as the same parties or their successors in interests are involved. now. Reindivicacion – Why? B’s heirs wants to recover. B now or if he (B) is dead. No more. tomorrow he will be the son of C.‖ Years later. What do we learn from this? A. Two. 47 (b) Rule 39 In other cases.96 After trial. involving the same causes of action. This is the so-called rule involving res judicata. What is meant by this? A.

Example: In the first case the defendant was only B. let’s say P1M. Lot and money… is that so? A. Why? Because the parties in the first case and the parties in the second case are not the same.‖ Q. Naturally A filed a motion to dismiss on the ground of res judicata. he/they would not recover. they argued that in the first case. Yes. What is the subject matter of the first case? A. Why? Because the money represents the value of the lot. Q. Q. the judgment will have been applied equally to S. Q.‖ B says. Q. ―I am the owner. the parties thereof are A. In the second case. No. So. It was decided. B and S are now the main plaintiffs. Q. So long as the parties in the subsequent case represents substantially the same interest as represented in the prior case . because if they were not the owner. Another rule… . What is the subject matter of the second case? A. S was never a party. Q. What are the other rules with respect to res judicata? A. Recovery of money. Why S? Because S is the wife of B. Here are the rules… The effects of res judicata cannot be avoided or evaded simply by changing the nature of the subsequent cause of action. So. The judgment became final. Example: You will note that this case between A and B. identity of parties. (So. identity of causes of action. correct? A. There was a mere change in the nature of action. If she were sued then. What is the nature now of the second action? A. as plaintiff and B. Q. But B and S argued that the rule on res judicata does not apply. Reivindicacion. But was not this question of ownership already decided? A. ―I am the owner. the parties are B and S as plaintiffs and A as defendant. the issue is: Who is the owner of the land? That judgment was rendered in favor of A. What the defendant A or heirs of A can do is to file a motion to dismiss under Rule 16 on the ground or res judicata. Money. So. she could have been sued merely as a nominal party. No. What is the cause of action in the second case? A. That the effects of res judicata cannot be avoided by simply changing the nature of the action. that will not strengthen the case of the husband because with or without the wife impleaded in the first case. What does this example illustrate? A. Q. Is the contention of the plaintiffs B and S. Q. they are not the same!) Q. B and S now filed an action to recover the value of the land. The fact that the parties in the subsequent case may not be exactly be the same as the parties in the prior case does not affect the application of the rule of res judicata. This is a very simple form of res judicata. identity of subject matter. With her addition as a plaintiff in the subsequent case. but both actions are founded in the same facts. What is the nature of the action in the first case? A. as defendant. he was declared the owner. A lot. you have here. then you have here res judicata. What is the cause of action in the first? A.97 A. A says. So there is no identity. What is the basis now of the claim of B or the heirs of B in recovery of P1M? A. Can this suit for recovery of damages be maintained by B? Look… Q. In the second case. Their ownership of the land. Ownership. Their claim of ownership. Why? Because S being merely a spouse was not an indispensable or even a necessary party in the first case. B now sued A for recovery of damages representing the value of this lot.

The issue is. Why? Because under this rule (Sec. ―In other cases involving the same parties that is deemed decided in the prior case which appears on its face to have been directly adjudged. He filed a motion to dismiss this second case. and (b) In case of a judgment or final order against a person. To allow the Municipal Trial Court to determine who is the lawful possessor. So.‖ that has been adjudged i n a prior case which appear on its face to have been directly adjudged or this could have been necessarily included therein. But only for this purpose. . which can now be decided. In either case. The only issue in forcible entry in .‖ After the judgment in favor of A has become final. there is or there are parties who were not parties in the prior case. this action for reindivicacion can no longer be litigated. That is what is meant by par (c) of Sec. C of Sec. what do you notice here? A. Can no longer be decided in the second case. B in Civil Case # 1234. the judgment or final order is conclusive upon the title of the thing. fraud or clear mistake of law or fact. there is still a part of the case in the second case. the question of possession is res judicata. Par (c) of Sec. So. Since the question of possession has already been decided in that forcible entry case. will not be a res judicata in the second case. This is his (A) contention. So. Example: A vs. 47 Rule 39. That cannot be litigated anymore. So B says. A judgment was rendered in that case. Why? Because the question of possession was already settled in the forcible entry case. So. this time for reivindicacion. Under this set of cases. Under the par. What is his basis? He now argued that the judgment in the forcible entry case is already res judicata. what is the issue here? A. The third part of Sec. Q. so that if the question of possession can still be disputed. ―the other cases involving the same parties. the judgment or final order may be repelled by evidence of a want of jurisdiction. collusion. the law says. ―I am the Q. Sec. involving possession. were not indispensable parties in the prior case. only those matters that have been decided in that prior case is deemed res judicata in the second case. A judgment rendered by a foreign court cannot be enforced in the Philippines except by action. So. The question of ownership can again be litigated. But can there be now a dispute as to the question of possession. having jurisdiction to render the judgment or final order is as follows: (a) In a case of judgment or final order upon a specific thing. No more. 48 Rule 39: Effect of Judgment rendered by a Foreign Court The effect of a judgment or final order of a tribunal of a foreign country. Q. owner. This is what A did. Subsequent to that. B can prove that A was not in possession of the lot? A. that judgment rendered in the first case is introduced as evidence in the second case. what is settled in the forcible entry case is the question of possession. It is only good in that case. there is another case between A and B or between B and A. Is the contention of A correct? A. ―Who has the right of possession of the land?‖ Let us say that the judgment was in favor of A. B sued A. 47 (c) Rule 39). the rule says. the rule says. Although you will recall that in BP 129 as now included in Rule 70 that. in a forcible entry case. will not affect the application of the rule on res judicata. 47 Rule 39. ―When the question of ownership is raised and the question of possession cannot be decided without deciding the question of ownership. Ownership. But then the findings of the MTC as to who is the owner is not final. Q. That is why. A was declared the lawful possessor. in our example. It is already res judicata. the question of ownership may be decided. B for forcible entry. Q. Only the question of possession the question of ownership here can still be decided. So in the reindivicacion. What was adjudged in a forcible entry? A.98 Here is an illustration of what we said earlier that in the subsequent case. The question of ownership is not decided in forcible entry. the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title. No. 47 (c) Rule 39 presupposes that there was a prior case between parties and that judgment in the prior case is invoked in a subsequent case between the same parties. then the question of ownership may be decided. 47 of Rule 39 involves partial res judicata. Therefore. Example: A vs. What do you recall about forcible entry? A. But with the introduction in evidence of the judgment in the first case. want of notice to the party. Q. the additional parties. But the decision is only for the purpose of determining who is the lawful possessor. The court having found that A had been in possession of the land for 20 years continuously until B ejected him therefrom.

QF 2. Q. What is strange here is this… In the case of title to specific property. OL 3. collusion. The rule says. it cannot be done. ―it can be repelled by proof of want of jurisdiction. the action for money. ―in either case. With respect to the second case. fraud.‖ Whereas under par (a). ―the judgment or final order may be rep elled by evidence of a want of jurisdiction. Questions Raised 1. Can that be done? A. a party against whom the judgment is sought to be enforced in the Philippines can still question the judgment because it says here. MTC (Rule 40) Mode of Appeal Notice of Appeal within the MTC Appellate Court RTC (No trial denovo) Period of Appeal Within 15 days from notice of judgment and on proper case within 30 days. A and B came to the Philippines. What is strange here? A. although this judgment has already became final in the USA. Our courts do not enforce foreign judgment. ―the judgment of the US court is conclusive to the title. B may repel the judgment by proof of lack of jurisdiction of the US court to render the judgment. the right can be contested by showing lack of jurisdiction of the court. 25. whether the judgment involves title to specific property or whether the judgment involves personal action. he is declared the owner. RTC of Manila for the enforcement of an action involving title or he will now file an action to enforce his judgment. 128803 Sept. What is the effect of this judgment of the US court on the title on that property? What is the effect of this judgment of the US court with respect to his money? A.‖ meaning. or the action in connection which a judgment may have been rendered is a personal action. NO. No. Where the case in inferior court involves a special proceeding or one which involves multiple appeal is 30 days a record on appeal being required. ―In any case. lack of notice. that judgment is merely a presumptive evidence that A has a claim against B. in the case of specific property. want of notice to the party. since this is merely a presumptive evidence of right of A against B. B was ordered to pay A money. the rule says. A now files a motion in court for the execution of that judgment in USA. Q. Let’s say that the judgment was rendered in any case in favor of A.R. 1998 (296 SCRA 539 Appeals Rule 40: Appeal from MTC to RTC A vs. Q. collusion. The trouble was. He must file an action in the Philippine courts for the enforcement of that judgment. So. CA G. well. That is why under the last paragraph. but it can be repelled. In the case of personal judgment. Final. Q. it was not enforced or executed in USA. B 1. yet under the last paragraph. What is the remedy available to A so that he can enforce this judgment? A. collusion. the law says. He (A) now files in the Philippines. the judgment of US court insofar as title to the property is concerned is final. lack of notice. In the case of personal action. So that is something strange about this… Foreign Judgment: Asiabest Limited vs. ―In the case of title to specific property. But in the last part. Example: A vs. fraud. Q.99 If a foreign judgment rendered in an action involving title to specific property. clear mistake of law or fact. B involving specific property or personal action. fraud or clear mistake of law or fact. Lack of notice a clear mistake of fact or of law committed by US court. clear mistake of fact or of law. This case was filed in the USA. that judgment is conclusive on the title to that property. OF&L .

Q. the period of appeal is 30 days. docket fee on time. . A vs. There can be no direct appeal from the MTC to any court other than the corresponding RTC. this case now of A and B in the RTC. B should also pay the appellate docket fee.100 2. Notice of Appeal Q. Only the corresponding RTC. What would be his mode of appeal? (Mode of Appeal) A. there is no trial de novo. he can go there. He must furnish the parties: A and B with that certificates. Where the case in the inferior court involves a multiple appeal. What now is the duty of the clerk of court of the MTC upon the filing of the notice of appeal and payment of the appellate docket fee? A. and pay the appellate Q. B here cannot appeal directly to the CA. the appeal period is counted from the receipt of the appellant of same (15 or 30 days) the order denying the motion for reconsideration. Q. a record on appeal being required. With what court is this notice of appeal be filed? A. 15 days or in a proper case 30 days. Same (15 or 30 days) Issue raised on appeal b) Appellate Jurisdiction Ex. Judgment was Appealed to RTC Petition for Review on Certiorari (Rule 45) (question law only) CA: Petition Review for SC CA (Regardless of the nature of the question raised) Same days) (15 or 30 Let us first take the case of a judgment of the MTC. The period of appeal is as a rule 15 days from notice of judgment .) CA (15/30) N. Q. So. What is needed for B here to perfect his appeal? A. So. To what court must he direct the appeal? (Period of Appeal) A. B MTC. He will now examine the records of the case preparatory to the elevation of the appropriate RTC and certify to the correctness of the records. if the case is one between A and B and B appeals from the judgment. Q. So. RTC Exercise of: a) Original j. How will this case of B be resolved by the RTC? Will there be a trial de novo when this case is before the RTC? A. Within what period must he file the appeal? (Period of Appeal) A. Why? Because the RTC now will decide the appeal of B solely on the basis of the records of the case. If he wants to go to the SC.B. File the notice on appeal on time. And on a proper case 30 days. When there is a motion for reconsideration of the judgment of RTC. He cannot appeal directly to the SC. MTC Q. A vs. there are two things as an appellant here must do. Within the period for the taking of an appeal. No. So. What is the appellate court? A. certify to the completeness of the records. What is the duty of the clerk of court with respect to this certificate issued? A. Q. RTC 15/30 days Q. B for specific performance (A won: B appeal) issues raised on appeal Notice of Appeal Filed with the same RTC that rendered judgment (question of law and question of fact or question or fact only. There is only one mode of appeal from a judgment of an inferior court and that is notice of appeal. but not by appeal. the evidence presents as forwarded by the clerk of court of the MTC to the clerk of court of the RTC.

the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof. that is A here may also file the so-called Appellees brief. The court will now decide the case on the basis only of the records and the evidence forwarded by the inferior court to the RTC. will have the power to affirm the order or reverse the order.101 The records of the case are now with the RTC clerk of court. A may also file his apellee’s memorandum within 15 days from receipt of the appellant’s brief or memorandum. the court rendered now a judgment in favor of A. The value of the property is P50.000 it (MTC) has no jurisdiction. Why? Because anyway the memorandum of the appellant B is already there. – If an appeal is taken from an order of the lower court dismissing the case without a trial on the merits. No jurisdiction notwithstanding. The general rule is: NO! The court will only decide on the basis of what was presented in the lower court. The appellee. The RTC affirms the order. Sec. Let say B filed a motion t dismiss on the ground that the complaint does not state the cause of action. There was a trial between A and B in the MTC. (Let us assume that A is the appellant…) The appeal may have been the result of the following: A for instance appealed from an order disposing the case without trial. (Reason: The MTC has no jurisdiction). A now appeals. Will not the court then hear A and B and receive their evidence? A. his memorandum? A. Q. Upon receipt of the records. So. In case of affirmance and the ground of dismissal is lack of jurisdiction over the subject matter. Yes. So. 8 Rule 40. but shall decide the case in . So. the court found that. the court will try the case if this case was originally filed with the RTC.000 and this property is outside Metro Manila. What will the RTC now do? A. Let us take the second situation. Q. The court (MTC) has no jurisdiction. the MTC. contrary to the holding of the MTC. Q. So it’s the duty of appellant B to file his memorandum on appeal within 15 days from notice or from within such period that appellate court may grant.000. the Regional Trial Court.‖ Let us assume that in this example. It will affirm the order of the court or it can order a hearing to be held as if this case was filed directly with the RTC. What will be the remedy available to the RTC? A. as the case may be. Q. It will return the case to the MTC for further proceedings. For what? So that B . In fact the RTC says. if it has jurisdiction thereover. Q. So. the brief is called memorandum. can the court decide the case? A. So B appealed. may now file his memorandum on appeal. So. What now is the duty imposed by the rules on the clerk of court? A. Here. In case of reversal. the clerk of court of the RTC will now send a notice to both A and B informing them of the fact that. Q. since the value exceeds P20. RTC. B now files a motion to dismiss on the ground of lack of jurisdiction. here dismissed the complaint of A on the basis of the motion to dismiss filed by B. The appellate court. the case shall be remanded for further proceedings. shall try the case on the merits as if the case was originally filed with it. it will try the case. This is what is mentioned in Sec. the RTC will not try the case. The court found that indeed the MTC have no jurisdiction. 8 Rule 40 Appeal from orders dismissing case without trial. the MTC has no jurisdiction. If the case was tried on the merits by the lower court. Like the first case. That could be a cause for the dismissal of the appeal of B. records are already there. Q. What is the effect of the failure of B to file the appellants brief. So. but in case like this. What will be the action of the RTC on appeal? A. Supposing the apellee A does not file the apellee’s brief or memorandum. Q. the basis for the motion to dismiss by B is proper. lack of jurisdiction. in our example for instance. without jurisdiction over the subject matter. So there are the effects of appeal in the MTC. Let us say that the RTC agrees with the finding of the MTC that it has no jurisdiction. It will return the case to the MTC for further proceedings. It will not dismiss. Let us suppose that the motion to dismiss was based on lack of jurisdiction. the Regional Trial Court may affirm or reverse it. What now will the RTC do on the case? A. the court dismissed it because the MTC has jurisdiction over (reivindicacion) cases only when the value of the property outside Metro Manila does not exceed P20. the appellant. Since the RTC has jurisdiction over reinividicacion involving this amount. ―the MTC has no jurisdiction. the motion to dismiss that the court has no jurisdiction but the RTC found that the MTC has jurisdiction. Illustration: This is an action filed by A against B for reivindicacion in the MTC.

The question raised on appeal may be a question of fact. the mode of appeal is a petition for review or certiorari under Rule 45 and the appellate court is the SC. Let me stress… with respect to the judgment of the RTC rendered in the exercise of its original jurisdiction. court can still decide appeal based on appellant’s brief * The judgment on appeal of the RTC is immediately executory. Regardless of the nature of the question raised on appeal. this (A vs. Let us say that A won the case. Where the appeal involves only a question of law. order execution pending appeal under Rule 39 Sec. or a question of fact and law at the same time.accordance with the preceding section.2 (motion for execution was filed before the expiration of the period to appeal) ORDINARY APPEAL * Matter of right * All the records are elevated from the court of origin * Notice of record on appeal is filed with the record of origin * If lower court dismissed the case without trial on merits: . without prejudice to the admission of amended pleadings and additional evidence in the interest of justice. Is there an appeal from the judgment of SC? A. If the question raised on appeal is only a question of fact. 3. * The Summary Rules no longer apply when the cases is on appeal. For instance. B) was judgment of the MTC which the court ruled upon on appeal and this judgment of the RTC affirming. it may only be a question of law. Q. the mode of appeal is a simple notice of appeal filed with the RTC. modifying or reversing the MTC judgment is in turned appealed. 15 or 30 days. (Forget that!) RENE NOTES: * failure to file appellants brief cause for dismissal of appeal * failure to file appellee’s brief. How about the judgment of the RTC rendered in the exercise of its appellate jurisdiction? A. then the mode of appeal is no longer a notice of appeal but under Rule 45 in which the case. Q. or (b) Reverses. Period of Appeal… The same. What would be the appellate court? A. It would be a simple notice of appeal filed with the same RTC that rendered the judgment. (n) Let us take the case of RTC. The distinction is important because the modes of appeals are not the same. B now wants to appeal. without prejudice to a further appeal that may be taken therefrom. 4. the appeal period is counted from receipt by appellant of the order denying the motion for reconsideration. permit appeal by an indigent. 2. B in the exercise of its original jurisdiction. No more that’s why the only appellate court would be God. The mode of appeal is a petition for review (R 42). in which case. the mode of appeal is prayer. What would the be mode of appeal? A. * Residual power of the court prior to the transmittal of the original record or record on appeal : 1. The period is the same. CA However. Appellate court…. if the only issue raised by B on appeal is question of law. Q. Appeal from judgment of SC-Appellate Court is God! Mode of Appeal-Period of Appeal-Eternally! (Joke only) Why? Q. or it can be a question of fact and law at the same time. the appellate court would no longer be the CA but the SC.RTC may: (a) Affirm. to approve compromise prior to the transmittal of the record. the mode of appeal may be a simple notice of appeal or a petition of certiorari depending on the question that is raised. * If dismissal is due to lack of jurisdiction over the subject matter: PETITION FOR REVIEW * Discretionary * No records are elevated unless the court decrees it * Filed with the CA . the appellate court is the CA. Let us assume that the RTC decided a case. to issue orders of the preservation of the rights which do not involve matters litigated by appeal. 102 The judgment of the RTC can be rendered in the exercise of its ORIGINAL JURISDICTION or in the exercise of its APPELLATE JURISDICTION. But when there is a motion for reconsideration of the judgment of the RTC. it shall remand the case for further proceedings. A vs. What would be the mode of appeal of B? A. It is the CA that has jurisdiction.

failure to comply with the proper form for the petition 5. INTERLOCUTORY orders 6. EXECUTION – Order of Execution 3. Motion for new trial or reconsideration and motion to Set aside a judgment. . and P500 as deposits for costs with the CA / Furnish RTC and adverse party copy of such (R42). Appealed to the RTC. WITHOUT PREJUDICE – Order dismissing an action without prejudice 2. by consent. or (b) Reverse.103 . prosecuted manifestly for delay 7. it remand the case for further proceedings. Rule 41: Appeal from Regional Trial Courts * What cannot be appealed? Clue: (WE PAID) 1. required fees were not paid 3. APPEAL – Orders disallowing or dismissing an Appeal 5. the questions raised are unsubstantial Ordinary Appeal (appeal by writ of error) * Case is decided by the RTC in its original jurisdiction Appealed to the CA * File a notice of appeal or a record on appeal with the court of origin (RTC) and give a copy to the adverse party. (Petition for relief. * Within 15 days from the notice of the judgment for notice of appeal and within 30 days for records on appeal / The period for filing is interrupted by a timely motion for reconsideration or new trial. shall try the case on the merits as if the case was originally filed with it. copies of the petition were not served on the adverse party . * File a verified petition for review on certiorari with the SC (R45) / Pay docket and lawful fees and P500 for costs / Submit proof of service of a copy to the lower court and adverse party.M. but shall decide the case. Rule 42 :Grounds for Outright Dismissal 1. DENIALS – Orders denying P.RTC may: (a) Affrim: if RTC has jurisdiction. if it has original jurisdiction. and shall admit amended pleadings or additional evidence. * File a verified petition for review with the CA / Pay the docket and lawful fees.Special civil action of certiorari or prohibition if there is lack of jurisdiction or grave abuse of discretion or mandamus if there is no performance of duty. Petition for review with the CA. in which case. confession or compromise on the ground of fraud.S.no proof of service 4. PENDING – Judgments or final orders for or against one or more of several parties or in separate claims while the main case is pending 4. * Within 15 days from notice of the judgment or order of denial of the MR or new trial. petition was filed out of time 2. duress or any ground vitiating consent.) * Remedy in cases where appeal is not allowed: . lawful fees and 3) deposit for costs and 4) failure to show proof of service of the same petition to the adverse party are grounds for dismissal. petition patently without merit 6. * A judgment based only on compromise is not appealable and is immediately executory. * If the case was tried on the merits by the lower court without jurisdiction over the subject matter: .RTC shall dismiss the case. Rule 42: Petition for Review from the Regional Trial Courts to the Court of Appeals * Failure to comply with the requirements on form such as: 1) certification against forum shopping 2) non-payment of docket. Petition for review (Rule 42) * Case is decided by the MTC. Petition for review on certiorari Rule 45 * The case raises only a question of law. mistake. Within 15 days from notice of the decision to be reviewed or form the denial of a MR or new trial.

Documents to be attached thereto… I leave this to you. #129742 Sept 16. final orders or resolution of or authorized by any quasi-judicial agency in the exercise of the quasi-judicial functions. Period? A. require respondent to file comment . In case. 2 of Rule 43. Contents of Petition. the 15-day period is counted from the receipt of the resolution denying the motion for reconsideration. are reviewable by the CA. B in SEC B lost the case in the SEC. What is the mode of appeal? A. (Saint Martin Funeral Homes vs. Before the decision in Saint Martin Funeral Homes vs. the SC traced the legislative history of the NLRC and it came into the conclusion that no one of the laws relative the NLRC provided for an appeal from judgment of the NLRC to the SC. Desierto G. 1 of Rule 43. judgments of the Labor Law of the Philippines are not covered by Rule 43. To this list. order or award of the SEC. NLRC. Example: A vs. the judgments are immediately executory. B now wants to appeal from the judgment of the SEC. NLRC (National Labor Relations Commission) Judgment of NLRC are not appealable to the SC but to the CA. But under this decision now.R. Q. so we can move… Scope of Sec. Petition for Review Q. judgments. See Table Rule 43: APPEALS FROM THE CTA AND QUASI JUDICIAL AGENCIES TO THE Sec. They are practically the same. Desierto. the different quasi-judicial bodies which decisions are subject to appeal to the Court of Appeals are enumerated under. Of course you will notice that under Sec. In this case. the procedure of an appeal from judgment of the quasi-judicial bodies are practically the same as the procedure for the disposition of an appeal from the judgment of the RTC in the exercise of its appellate jurisdiction. Both are reviewable by petition for review. COURT OF APPEALS . the court declared unconstitutional the provision of the law creating the office of the ombudsman which empowered the SC to review judgment of the ombudsman iN administrative-disciplinary cases. dismiss the petition if it finds that: a) it is patently without merit b) prosecuted manifestly for delay c) the questions raised are unsubstantial * It is merely discretionary on the CA to order the elevation of the records. the judgment of a quasi-judicial body requires it to be published in order that a judgment may be valid. the trial court may still issue a warrant of execution pending appeal and in some cases such as ejectment and those of Summary Prcedure. The same. 1998 295 SCRA 494. 1 Rule 43 Sec. Sept 16. Fabian vs. Saint Martin case. So. 1998 2. NLRC) G. * ACTIONS ON THE PETITION Court may 1. In this case. the decision of the NLRC are now covered by the Rule 43. you add two other bodies whose decisions are appellate to the Court of Appeals: 1. judgment or order of the SEC. R. the orders of the ombudsman is administrative discipline cases In case of Fabian vs. judgment or orders of the ombudsman in administrative-disciplinary proceedings. SC held that there is no law which authorizes appeals from judgment of the NLRC to the SC. The period is within 15 days from receipt of the copy of the award. under this decision. 1 Rule 43 1) Appeals from judgment or final orders of the court of Tax Appeals.10 days 2. the judgment of NLRC were reviewable be certiorari before the SC. This is because until the petition is given due course. however. It is only when the CA deems it necessary that the Clerk of the RTC will be ordered to elevate the records of the case. 2) Appeals form awards. the 15 days period is counted from the last day of publication. # 130866. In case there is a motion for reconsideration of the judgment.104 * Outright dismissal allowed – Petition for review is not a matter of right but discretionary on the part of the CA. It may only give due course to the petition if it shows on its face that the lower court has committed an error of fact and/or law. With this difference only. Except for some differences.

No. Q. In the case of a judgment of the quasi-judicial body. Upon the filing of the memorandum or the expiration of the period of the filing thereof. What now will the action of the court thereafter? A. it may now require the quasi-judicial body. SEC in our example. An error that may warrant a reversal of the judgment. A. If the court gives due course. Desierto) 22) Voluntary Arbitrators Action of the CA on the petition… It may dismiss outrightly the petition on the ground for instance that (1) the motion was filed out of time. the case may now be submitted for decision. Q. (That’s how simple it is!) Q. the appeal therefore does not stay the execution of the judgment. the court may find it proper to direct the respondent to file a comment with 10 days from notice. It is immediately executory. What is the difference between the effect of an appeal from a judgment rendered by a quasi-judicial body on the execution of the judgment appealed from the effect of an appeal in an ordinary case from the judgment of CA where the judgment is that of a RTC? A. At its option. order or award appeals from or which may warrant at least a modification of the judgment appeals. No. On the other hand. Will the case now be submitted for decision? A. Let us say now that the comments have been filed Q. this is subject to an exception where the appeal from the judgment of the SEC or any quasi-judicial body for that matter stay the execution when the CA itself orders the stay of an execution. So if the court gives the respondent time to comment that means to say that the court may grant to determine whether to give due course or not. NLRC) 21) Ombudsman (Fabian vs.105 List of Agencies 1) Civil Service Commission 2) Central Board of Assessment Appeals 3) Securities and Exchange Commission 4) Office of the President 5) Land Registration Authority 6) Social Security Commission 7) Civil Aeronautics Board 8) Bureau of Patents. The court may find that petition is not meritorious at all or the court may find that the petition was filed merely for purposes of delay. the comment on the petition itself if there is a prima facie showing that the body whose judgment is subject of petition may have committed an error. In other words. On the other hand. how will the CA decide now the case? A. (3) copies of the petition were not served by the adverse party. that is the general rule. Is it enough that the error was committed either of fact or of law? A. or the court may find the issues raised in the petition are too insubstantial to require further proceedings. This error is of fact or of law. When will the court give due course here? A. a judgment of the RTC appealed from cannot be executed during the pendency of the appeal. If from the pleading. Q. an appeal from a judgment of the RTC to the CA is stayed. Trademarks and Technology Transfer 9) National Electrification Administration 10) Energy Regulatory Board 11) NTC 12) Department of Agrarian Reform under R. elevate to the CA the records of the case. Q. However. Q. etc. (2) the required fees were not paid. to this petition. CA may require the parties to submit their memorandum within a given period of time. Is there a case however. The court may then give due course to the petition or deny due course. Let us assume that the records have been elevated to the appellate court. where a judgment is that of a RTC and yet an appeal therefore does not stay the execution? . Not yet. 6657 13) Government Insurance System 14) Employees Compensation Commission 15) Agricultural Inventions Board 16) Insurance Commission 17) Philippine Atomic Energy Commission 18) Board of Investment 19) Construction Arbitrators Authorized by Law 20) National Labor Relations Commission (Saint Martin Funeral Homes vs.

2. the appeal therefore does not stay the execution of the judgment.106 A. The RTC affirmed the judgment. existence and relevancy of specific surrounding circumstances and relation to each other and the whole probabilities of the situation * As a general rule. Copies of the petition were not served on the adverse party 4.45 days from notice of clerk of court b) appellee’s brief . Contents of appeal does not follow the prescribed form Grounds for Dismissal (Upon motion) 1. Exceptions to Conclusiveness of Facts: 1. When the findings of facts are conflicting. When the judgment is premised on a misrepresentation of facts. Yes. or wherein the death penalty is imposed which is subject to automatic review. RENE NOTES: Grounds for Outright Dismissal 1.45 days from receipt of appellant’s brief c) appellant’s reply brief . When the CA in making its findings went beyond the issues of the case and the same is contrary to both the admissions of appellants and appellees. When the finding is grounded entirely on speculations. When inference made is manifestly absurd. or as to probative value of the evidence presented * the determination involves evaluation or review of evidence * qeury invites the calibration of the whole evidence considering mainly the credibility of witnesses. . Rule 45: Appeal by Certiorari to the Supreme Court * Appeals to the Supreme Court can be taken from a judgment or final order for resolution of the CA. 5. or reclusion perpetua which shall be elevated by ordinary appeal. the Sandiganbayan. * If a motion to dismiss an appeal has been filed. The defendant B filed a petition for review under Rule 42 (petition for Review from the RTC to SC). * The failure of the appellant to make specific assignment for errors in his brief or page references to the record as required in this section is a ground for dismissal for his appeal. Q. 7. Required fees were not paid 3. Questions raised are unsubstantial to require consideration PROCEDURE IN THE COURT OF APPEALS RULE 44: Ordinary Appealed Cases Time to File a) appellant’s brief . the SC has to review the evidence in order to arrive at the correct findings based on the record. QUESTIONS OF LAW * doubt of controversy as to what the law is on ceratin facts * if the appellate court can determine the issue raised without reviewing or evaluating the evidence * can involve questions of interpretation of the law with respect to the ceratin set of facts QUESTIONS OF FACT * doubt or difference arises as to the truth or falsehood of facts. 4. the RTC or such other court as may be authorized by law and only by a verified petition for review on certiorari on questions of law except in appeals from judgments of the RTC in criminal cases wherein the penalty imposed is life imprisonment. the findings of fact of the CA are final and conclusive and cannot be reviewed on appeal to the SC. 6. surmise of conjecture. Patently without merit 2. 3. When there is grave abuse of discretion in the appreciation of facts. When the findings of fact of the CA are at variance with those of the trial court. Petition filed out of time 2. mistaken or impossible. which ordered the defendant to vacate the premises. Example: The RTC affirmed the judgment of the inferior court in a forcible entry case. Yes. as the same would be unnecessary should the motion be granted.20 days from receipt of appellee’s brief * Failure to file appellant’s brief on time is a ground for dismissal of the appeal. it suspends the running of the period for filing the appellant brief. Prosecuted manifestly foe delay 3. It’s the only exception. May this judgment against him be enforced notwithstanding his appeal therefore in CA? A. That is when the judgment rendered by the RTC involves a case which is decided under the rules on summary procedure in which case.

speedy or adequate remedy * filed not later than 60 days from notice of judgment. and auxiliary writs or processes. When the facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondents. 129. order of resolution appealed from * unless a writ of preliminary injunction or temporary restraining order is issued does not stay the challenged proceeding * the parties are the aggrieved party against the lower court or quasi-judicial agency and the prevailing parties It is a mode of appeal * involves the review of the judgment award or final order on the merits * must be made within the reglementary period * stays the judgment or order appealed from * the petitioner and the respondent are the original parties to the action. what did we learn under Rule 39? A. . When the findings of fact are conclusions without citation of specific evidence on which they are based. habeas corpus and quo warranto. the CA has original jurisdiction to issue writ of mandamus. If a judgment has already become final and the loosing party lost the right to file a petition for review or lost any other remedy against this judgment without his fault then he may file a petition for annulment of this judgment. When may a judgment of the RTC be the subject of a petition for annulment in the CA? A.107 8. prohibition. 3) Require respondents to file COMMENT within 10 days from NOTICE 4) Court may require the filing of a REPLY or such other pleadings as it may deem necessary 5) Determination of FACTUAL ISSUES . then he cannot avail of this Rule 47.the court may delegate the reception of evidence on such issues to any of its members. would alter the result of the case in that they would entitle the accused to acquittal. 9. This judgment became final. Example: In the RTC. 10. When certain material facts and circumstances have been overlooked by the trial court which. Well. whether or not they are in aid of its appellate jurisdiction. A judgment was rendered against B. certiorari. When a judgment becomes final. The court acquires jurisdiction: (1) Over petitioner by filing of the petition (2) Over the respondent by the service on the latter of the order or resolution indicating the courts initial action on the petition and NOT by the service on him of the petition. there is nothing left to be done but to execute it. * Certiorari under Rule 45 vs. 11. and it has executive original jurisdictions over actions for annulment of judgments of Regional Trial Courts. and the lower court or quasijudicial agency is not impleaded * Motion for reconsideration is not required * the court is in the exercise of its appellate jurisdiction and the power of review * Motion for reconsideration or for new trial is required * File a motion for reconsideration or new trial is filed. This means to say that if the party against whom the judgment was rendered lost the right to file a petition for relief or lost any other remedy which could have been available to him because of his fault. the parties were A and B. Matter 002-03) * court exercises original jurisdiction Rule 46:Original Cases (In the CA) Under BP Blg. if taken into account. Rule 47: Annulment of Judgment or Final Orders and Resolutions (Annulment of Judgments rendered by the RTC and Annulment of Judgment rendered by the Inferior Court) Q. The findings of fact of the CA is premised on the supposed evidence and is contradicted by the evidence on record. the period shall not only be interrupted but another 60 days shall be given to the petitioner (SC Admin. Procedural Outline (original cases in the Court of Appeals) 1) Filing of the petition 2) Order to acquire jurisdiction over respondents OR Outright dismissal for failure to comply to requirements also form and payment of docket and other legal fees. Q. certiorari under Rule 65 (special civil action) CERTIORARI UNDER RULE 45 * petition is based on questions of law CERTIORARI UNDER RULE 65 * petition raises the issue as to whether the lower court acted without jurisdiction or in excess of jurisdiction or with grave abuse of discretion Special civil action * directed against an interlocutory order of the court or where there is no appeal or any other plain.

because B failed to file a petition for relief. B now wants to file an action for annulment based on extrinsic fraud.108 Q. ―B. except for this In our example. Because of the absence of B. Because B failed to file a motion for reconsideration: because B failed to file a motion for new trial. In this case. Q. The court has already granted it. it is correct. the court rendered judgment. B would not have rebut it with contrary evidence because that was not committed outside the trial. B did not appear for the pre-trial. The judgment in favor of A became final. at any time before the action is barred by laches or estoppel. He did not. There are two (2) causes of action that CA may take this case: The petition should be accompanied by affidavits of witnesses of the party filing the petition . The contents of the petition are stated in Rule 47. You do not have to appear anymore in the court for the pre-trial. Procedure. If it is lack of jurisdiction. What is the difference? A. Let’s reverse the situation… Example: A and B received the notice of pre-trial setting the pre-trial for specific date. the court rendered a judgment in favor of A. What now will be the action of CA. A now moves that he be allowed to present his evidence ex parte. In the case of an intrinsic fraud. Q. If it were A who filed his petition. Period within which B may now file an action for annulment in CA… The period depends on the ground whether the ground is extrinsic fraud or the ground is lack of jurisdiction. It’s either extrinsic fraud or lack of jurisdiction These are the only two (2) grounds available to B. Is this ground (forgery) an extrinsic fraud? A. But in the case of the second misrepresentation. On the day of the pre-trial. I already filed a motion for postponement. Let’s illustrate each of them… Example: Supposing during the trial. Q. will it immediately give the due course or it can dismiss outright the petition? A. If B is to file the petition. The petition is now there in court (CA). then B cannot file an action for annulment . B could have presented on the fact that this document is a forgery. If the lost of any of these remedies was on account for the fault of B. So. And on the basis of this forged document alone. If the ground is fraud. Why did this judgment become final? A. What are the grounds? A. Yes. Whereas. B files an action to annul this judgment on the ground of extrinsic fraud. . do not have to repeat. there is an opportunity for the adverse party to counteract that fraud. matter. his petition should be accompanied by affidavits of his witnesses on the cause of action of A. what then? Intrinsic fraud. The lost of any of these rights was not due to the fault of B. Exhibit ―A‖. With what extrinsic fraud consist of? A. the petition of B should be accompanied by affidavits of his witnesses. Because B failed to file a notice of appeal. This is the concept of extrinsic fraud. Q. Q. These are the only periods.‖ Believing on the truthfulness of A. since he was the defendant in the trial below (RTC). Before the date of the pre-trial. Why? That kind of a fraud committed against him was committed outside the trial. What is an extrinsic fraud as contradicting intrinsic fraud? A. he Has four (4) years from discovery of the fraud with which to file an action. According to him (B). the fraud consisting in the introduction of evidence in court of that Exhibit ―A‖ i s an intrinsic fraud. in the RTC. Thereafter. A submitted in evidence a forged document. That is his (B) fault. Of course the other ground is lack of jurisdiction. Is it the contention of B here correct? A. Q. the misrepresentation of A that the pre-trial set on the scheduled date was cancelled. A met B and said. No. however A appeared in court. the affidavit of his witnesses must be those which would support his defense against the action of A. Q.

Then the court can immediately dismiss it. However. However. an appropriate judge. Let’s say that the cause of action that can be brought within four (4) years from the happening.‖ That’s why the respondent in this case now. ―that this case will now be treated as if it were an ordinary case filed in the RTC. the members of the CA assigned to receive the evidence will act as if he were a judge of RTC conducting a trial. The prescriptive period for the filing of the aforesaid original action shall be deemed suspended from the filing of said original action until the finality of judgment of annulment. What will be required of B here? A. It is as if there was a new trial granted. At the time the action was filed. 1997. It may authorize any of its members to receive the evidences. We said that. this action can be refilled. it is not meritorious. The CA may delegate the reception of the evidence to another judge. in the CA now. A judgment annulling this decision of the RTC that was rendered by the CA and became final on Jan. However. was rendered in favor of A. What do you notice here? A. . However. 8 Rule 47 Suspension of Prescriptive Period The prescriptive period for the refilling of the aforesaid original action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. This means to say that the grounds have not been proven. Any judge? No. only one (1) year of the prescriptive period remained. 1994. where the judgment is declared void. It will still be the CA that will render the judgment. Sec. the plaintiff here. How? The rule now says. We say that as a result of this judgment. B filed an action for annulment on Jan. Let say this cause of action became the subject of a complaint filed by A against B on January 2. The ground was extrinsic fraud. Q. 7 Rule 47 (Effect of Judgment) A judgment of annulment shall be set aside the questioned judgment or final order or resolution and render the same null and void. Q. B. This is what is meant by this suspension of prescriptive period (Sec. The court finds the petition to be impressed with merits (with prima facie merit). which serves as the basis of the CA in setting aside the judgment of RTC was extrinsic fraud. No. Then it will give it due course. instead of having this case refilled. A. obviously. In other words. regarding the Evidence which it is required to receive. Will there be an actual trial in the CA or in short may the CA receive the evidence itself? A. the CA may direct the RTC to continue hearing the case. In other words. this judgment however. So. 5. Ground the petition in its (CA) view is not impressed with merits. 6. the prescriptive period cannot be suspended where the extrinsic fraud is attributable to the plaintiff in the original action. B will be required to file his answer and thereafter. 3. the CA will now decide the case. Q. So the decision of the RTC stands. Q. where the ground. Example: RTC-A vs. What is the extent of the power of the RTC judge to whom the reception of the evidence of the parties has been delegated by the CA? May the RTC decide the case? A. However. Then what shall CA do? A. So after the reception of the evidence either by the CA itself or by a judge of the RTC. The judgment of the CA may be to grant the already expired decision. where the judgment or final order or resolutions set aside on the ground of extrinsic fraud. not the power to decide the case. Q. trial shall proceed as if this were a case pending in the RTC. without prejudice to the original action being refilled in the proper court. 1993. the CA cannot direct the RTC to hear this case. Example: The judgment of the RTC was set aside. 8 Rule 47) Sec. Judge of the RTC. It has to be re-filed. A will have to be summoned. the prescriptive period shall not be suspended where the extrinsic fraud is attributable to the plaintiff in the original action. The decision may be dismissal of the petition. There are several options available to the C. if the basis of the CA in setting aside the judgment of the RTC was lack of jurisdiction. the court may on motion order trial to try the case as if a timely motion for new trial had been granted therein. Why? Because the power delegated to him is the power to receive the evidence. 1995.A. may re-file the case or instead of refilling the case. This judgment in favor of A became final on Jan. the trial may be declared to hear anew the case as if a motion for new trial was granted .109 1) 2) immediately dismiss the petition. So these are the options available to the CA.

the ground of the annulment was not in jurisdiction.   The period from January 2. 1994 Judgment in RTc became final.110 Since the extrinsic fraud by A and A elected to re-file the case in the RTC. if you add therefore the period from Jan. The cause of action prescribes in four (4) years from happening. 1993 The cause of action arose on Jan. Therefore. Note that the cause of action in the above example prescribes in four (4) years. So. 1999 Since the extrinsic fraud was committed by A. He only has four (4) years. 1990. for purposes of refilling the case. 1990 A vs. 1999. other matters which may aid in the prompt disposition of the case Rule 49: Oral Argument * Not mandatory * The oral argument shall be limited to such matters as the court may specify in its order or resolution. the period between the time he filed the original complaint (Jan.it was availed of or could have been availed of in a: a) motion for new trial b) petition for relief Effect of Judgment a) annulment based on lack of jurisdiction – original action may be refilled. The period between the first time the case was filed and time of the judgment of CA (Jan. 2. He filed this case A vs. Therefore. Rule 50: Dismissal of Appeal Grounds for Dismissal . he (A) (elected to) re-filed the case in the RTC. 1993) and the time judgment became final (jan. 6. possibility of an amicable settlement 2. B on Jan. January 1. A vs. 1997 The judgment of CA annulling the decision of the RTC became final January 7. only one (1) year left in the prescriptive period) January 3. the period may not have yet prescribed. A filed a complaint against B in RTC (original complaint) (at the time of filing. 1999). 7. B. formulation or stipulation of facts 4. 7. Not suspended because extrinsic fraud by A.if failed to file without fault 1) notice of appeal 2) motion for reconsideration 3) motion for new trial 4) petition for relief Extrinsic Fraud . this was not suspended. from January 1. 1997). 1995 B filed an action for annulment by reason of extrinsic fraud committed by A. 1990 to the time he filed the second action (Jan. 1997) became final. Q. 1990 to January 7. January 6.Fraud committed outside the trial and not in the course of the trial * extrinsic fraud shall NOT be a valid ground if: . the cause of action already prescribed. 1997 (CA decision became final) was not suspended because the extrinsic fraud was committed by a (plaintiff). 6. Judgment in favor of A. (as if a motion for new trial was granted) Rule 48: Preliminary Conference * Not mandatory Things taken up: 1. Note* Nine (9) years have elapsed. not fraud. b) based on extrinsic fraud – trial court will try the case. (By reason of extrinsic fraud committed by A) January 5. at the time this case was re-filed. 1999. The law says… Since A was the one guilty of extrinsic fraud. this period is suspended. you have already a period of nine (9) years. RENE NOTES: Rule 47: When to File . 1. 1993 (first case was filed to) January 6. Prescribed! If however. 1. Has his action prescribe or did not prescribe? A. B January 2. clarification of issues 3.

or directives of the court without justifiable cause. 2) Where no hearing is held a) upon the filing of the last pleading. (e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules. (c) Failure of the appellant to pay the docket fee and other lawful fees as provided in Section 5 of Rule 40 and Section 4 of Rule 41. or c) expiration of the period for filing. 1998. 1998. b) upon the filing of the last pleading or memorandum. (1a) * An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright. (d) and (f) of Rule 44. Thereafter. . Example: A vs. 1998) before the court lost its jurisdiction. 1. brief or memorandum. the judgment already becomes final. b) upon the filing of the last pleading or memorandum. Let us say that the appeal made was perfected on Dec. ―at anytime after the appeal has been perfected‖. Rule 52: Motion for Reconsideration * The rules now prohibit a second motion for reconsideration. Let us say that a judgment was rendered by the CA on Dec. What is the jurisdiction here? A. 18. B in the RTC. 18). Rule 53: New Trial Q. or b) expiration of the period for filing 2) Where hearing on the merits of the main case is held a) upon its termination. (d) Unauthorized alterations. 1998. 1. the following day. until then the court still retains jurisdiction. circulars. Q. Q. When then can he file a motion for new trial? A. the last day for him to file would be Dec. or b) expiration of the period for filing. In original action and petition for review – 1) Where no comment is filed a) upon the expiration of the period to comment. When may a motion for new trial in CA be filed? A. 1998 to Dec. 1. (f) Absence of specific assignment of errors in the appellant’s brief. the court no longer has any jurisdiction. Because if there is no perfected petition for certiorari as of Dec. paragraph (a). Let’s say that B appealed to CA. In ordinary appeals 1) Where no hearing on the merits of the main case is held a) upon the filing of the last pleading. (b) Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules. 18. (c).111 (a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules. 1998. * The pendency of a motion for reconsideration filed on time shall stay the execution of the judgment. At anytime after the appeal has been perfected up to the time the CA has not yet lost jurisdiction over the case. Within what period must he file it? A. So. and (i) The fact that the order or judgment appealed from is not appealable. So. or c) expiration of the period for filing B. omissions or additions in the approved record on appeal as provided in Section 4 of Rule 44. between these two dates (Dec. (h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders. or of page references to the record as required in Sec tion 13. * The rules now require the service of the motion to the adverse party. the with drawal will be allowed in the discretion of the court. The law says. 18. * An appeal will be withdrawn as a matter of right at anytime before the filing of the appellee’s brief. he has a 15-day period therefrom within which to file a petition for certiorari in the SC. 3. B wants to file a motion for new trial. So. Q. (g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order. Rule 51: Judgment A case shall be deemed submitted for judgment: A. At anytime between the date (Dec. Let us assume also that B received the copy of the decision on Dec. 3) Where hearing is held a) upon its termination. 1 to Dec.

c) failure to pay the requisite docket fee and other lawful fees to make deposit for costs. How will the CA here resolve this motion for new trial? A. The motion for new trial in the CA can be based only on one ground that is newly discovered evidence. Assuming now that the motion for new trial has been granted. How RTC conducts a trial following the grant of a motion for new trial. This is not available in the CA.112 There is only one ground for a motion for new trial under Rule 53. Cases affecting ambassadors. Q. 3. When should this motion for new trial be resolved? A. other public ministers and consuls * An appeal to SC can only be taken by petition for review on certiorari . or life imprisonment. g) case is not justifiable to SC. what will be the next proceeding? Unless the court otherwise directs. d) failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition. It will conduct a hearing. Q. b) lack of merit in petition. directive or order of the SC without justifiable cause. Evidence which would not have been discovered while the case is pending before trial in RTC (in our example). Quo warranto 5. Certiorari 2. the procedure in the new trial shall be the same as that granted by the RTC. Prohibition 3.  ANCILIARY – incidents in and dependent on the result of the main action. Unlike a motion for new trial in a criminal case which can be conducted by a trial court. Q. and for the purpose of ultimately effecting a final judgment in the case. Even with due diligence. Grounds for dismissal of appeal by SC: a) Failure to take appeal within the reglementary period. * Discretionary upon SC (and CA) to call for preliminary conference similar to pre-trial. PROVISIONAL REMEDIES Rule 57: Preliminary Attachment * Provisional remedies (anciliary/auxiliary) – writs and processes available during the pendency of the action may be resorted to by a litigant to reserve and protect rights and interests therein pending rendition. . * Appeal by certiorari from RTC to SC submitting issues of fact may be referred to the CA for decision for appropriate action. B in this example. f) error in choice or mode of appeal. Habeas Corpus 6. *Preliminary Attachment a) available even if the recovery of personal property is only an incidental relief sought in the action. Who may receive the evidence in this case? A. b) may be resorted to even if the personal property is in the custody of a third person. RENE NOTES: PROCEDURE OF THE SUPREME COURT Rule 56: Original and Appeal Cases Original Cases Cognizable 1. Within 90 days from the date the motion for new trial is submitted for resolution. e) failure to comply with any circular. Rule 122). Mandamus 4. would not have presented that evidence and which if presented will probably alter the judgment of CA already rendered. Disciplinary proceedings against members of the judiciary and attorneys 7. without prejudice to considerations on whether or not to give due course to the appeal as provided in Rule 42. or when a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence which gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed (Sec. There are two grounds where a judgment which has been rendered against a party because of FAME that affected the substantial rights. *GR: Appeal to SC by notice of appeal shall be dismissed Exception: In criminal cases where the penalty imposed is life imprisonment. except in criminal cases where the penalty imposed is death. This is a distinction between the two.  PROVISIONAL – constituting temporary measures availed of during the pendency of the action. This is in contrast with the ground of a motion for new trial under Rule 37. a motion for new trial in a civil case can be heard only by CA itself. reclusion perpetua.

b) before appeal perfected. f) attachment is excessive – discharge is with respect to the excess * Application for discharge may only be filed with the court where the action is pending and may be filed even before enforcement of the writ so long as there has been an order of attachment. tribunal. AND with permission of the court. d) in the appellate court for damages pending appeal. *Grounds a) recovery of specified amount of money and damages. * When preliminary attachment is discharged a) debtor posts a counterbond or makes requisite cash deposit – if attachment to be discharged is with respect to particular property. when the property is concealed or disposed of to prevent is being found or taken. There is no need to first execute judgment against obligor before proceeding against sureties. application and affidavits for the attachment and the bond upon the adverse party. e) action against party who is concealing or disposing of property. c) before judgment becomes executory. BUT the requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served despite diligent efforts. * When judgment becomes executory. b) defendant is permitted to post a counterbond it appearing that he would sustain great and irreparable injury if injunction granted or continued while plaintiff can be fully compensated. Rule 58: Preliminary Injunction * Preliminary injunction distinguished from Prohibition Preliminary Injunction Generally directed against party to the action but may be against any person Does not involve the jurisdiction of the court May be main action itself or just a provisional remedy in the main action * Grounds for Preliminary Injunction a) plaintiff is entitled to relief sought which consists in restraining or requiring the performance of acts (latter is preliminary mandatory injunction). officers of corp. or the defendant is a resident of the Phils temporarily absent therefrom. real or personal or incorporeal. except moral or exemplary. removed. or is about to do so. where party is about to depart from the Phils with the intent to defraud creditors. copy of complaint. * PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICITON (Preliminary Attachment) . f) action against party who is not a resident of the Phils and cannot be found therein upon who service by publication can be made. * Injunction may be refused or dissolved when: a) complaint is insufficient. b) action for money or property embezzled or for willful violation of duty by public officers. * Claims for damages cannot be subject of independent action except: a) when principal case is dismissed by the trial court for lack of jurisdiction without giving the claiming party opportunity to prove claim for damages. d) to recover possession of personal property unjustly detained. as long as the property belongs to the defendant.113 c) extends to all kinds of property. or the defendant is a non-resident of the Phils or the action is in rem or quasi in rem. c) attachment was improperly or irregularly issued. d) property attached is exempt from execution.Enforcement of writ of preliminary attachment must be made preceded by or simultaneously accompanied by service of summons. c) recovery of possession of property (both real and personal) unjustly detained. sureties on counterbond to lift attachment are charged and can be held liable for the amount of judgment and costs upon notice and summary hearing. with intent to defraud creditors. in all other cases. e) can still be resorted to even if the property is in custodia legis. e) judgment is rendered against attaching party. before judgment becomes executory. b) when damages sustained by a third person not a party to the action. Prohibition Directed against a court. * When to apply for damages against the attachment bond a) before trial. or person exercising judicial powers May be on the ground that the court against whom the writ is sought acted without or in excess of jurisdiction Always a main action . agent or fiduciary. counterbond or deposit shall be equal to the value of the property as determined by the court. or disposed of to prevent its being found or taken by the applicant. c) defendant is doing or about to do an act violating plaintiff’s rights respecting the subject of the action and tending to render judgment ineffectual. presupposes that the same is being concealed. b) the commission of acts or non-performance during pendency of litigation would probably work injustice to the plainitiff. amount of counterbond should be equal to the amount fixed in the order of attachment. or is one in which he has proprietary interests. d) action against party guilty of fraud in contracting the debt or incurring the obligation or in the performance thereof. * CASH DEPOSIT OF COUNTERBOND SHALL SECURE THE PAYMENT OF ANY JUDGMENT THAT ATTACHING PARTY MAY RECOVER b) applicant’s bond is insufficient or sureties fail to justify.

upon the adverse party in the Phils. removed. and hold summary hearing to determine whether the TRO should be extended for 20 days. it shall be filed. or to dispose of it. administer. Because of their nature. until further orders from SC. b) action by mortgagee for foreclosure of mortgage when the property is in danger of being wasted or materially injured and that its value is probably insufficient to discharge the mortgage debt. BUT the re quirement of prior or contemporaneous service of summons shall not apply where the summons could not be served despite diligent efforts. whether it is damages against the applicant’s bond for the unlawful appointment of the receiver or for enforcing the liability of the sureties of the receiver’s management (in the latter case. . b) adverse party files sufficient bond for damages. Example: . * Defendant entitled to return of property taken under writ if: a) he seasonable posts redelivery bond b) plaintiff’s bond if insufficient or defective c) property is not delivered to plaintiff for any reason. no longer need to file a separate action). while in applications for injunction or TRO. or was seized under a search warrant or distrained for tax assessment. removed or materially injured. the principle applies only in the implementation of the writ. or dispose of the property in litigation.replevin bond is only intended to indemnify defendant against any loss that he may suffer by being compelled to surrender the possession of the disputed property pending trial of the action. d) when appointing one is the most convenient and feasible means to preserve. Rule 57. * TRO can be issued ex parte only if matter of grave urgency and plaintiff will suffer grave injustice and irreparable injury. or to carry out the judgment. ascertained and granted under the same procedure as Section 20. if filed in a multiple-sala court. or the defendant is a non-resdent of the Phils. Why are these called ―Special Civil Actions‖? A.114 c) plaintiff’s bond is insufficient or defective. * TRO good for only 20 days from service. 60 days for CA. In any event. Rule 59: Receivership * When receiver may be appointed: a) party has an interest in the property or fund subject of the action and such is in danger of being lost. The first of this special civil action is the case of an interpleader. In no case can TRO be longer than 20 days including 72 hours. complaint. c) extends only to personal property capable of manual delivery. * Both the applicant for receivership and the receiver appointed must file separate bonds. or contemporaneously accompanied by service of summons. Rule 60: Replevin * Replevin a) available only where the principal relief sought in the action is the recovery of possession of personal property. this principle applies before the raffle and issuance of the writs or TRO. or disposed of. c) after judgment. e) cannot be availed of if property is in custodia legis. b) can be sought only where the defendant is in the actual or constructive possession of the personal property involved. * In claims against the bond. such notice shall be preceded. d) available to recover personal property even if the same is not being concealed. surety not liable for payment of judgment for damages rendered against plaintiff on a counterclaim for punitive damages for fraudulent or wrongful acts committed by the plaintiffs which are unconnected with the defendant’s deprivation of possession by the plaint Special Civil Actions Rule 62: Interpleader Q. or aid in execution when execution has been returned unsatisfied or the judgment debtor refuses to apply his property to satisfy judgment. * No preliminary injunction or TRO may be issued without posting of bond and notice to adverse party and hearing. shall be raffled only after NOTICE to and IN THE PRESENCE of the adverse party or the person to be enjoined. Thus. What is the concept of an interpleader? A. together with a copy of the complaint and the applicant’s affidavit and bond. as where it is under attachment. the case. OR that the parties have stipulated in the contract of mortgage. c) applicant or receiver’s bond is insufficient. or the defendant is a resident of the Phils temporarily absent therefrom. there are special procedures to follow. Good for 72 hours from issuance. * PRINCIPLE OF PRIOR OR CONTEMPORARY JURISDICTION : When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading. to preserve the property during the pendency of the appeal. Q. affidavit and bond. * When receivership may be denied/lifted: a) appointment sought is without sufficient cause. * difference with principle in prelim attachment – in attachment. within which judge must comply with service of summons.

Why? Because they are the ones litigfating. this process of interpleader. accompanying the summons is an order of the court. Q. Section 4 Rule 62 Within the time of filing an answer. C will file his answer.115 A leased an apartment to B. What now is the procedure to be followed by the court when this interpleader action was filed? A. After the lease period has run. the plaintiff against him is C. So. the grounds for a motion to dismiss under Rule 62 are more encompassing than the ground of a motion to dismiss under Rule 16. But here. B. Q. insofar as A is concerned. A and B. C said. the impropriety of the action is not a ground for a motion to dismiss. It is A and C who are fighting each other. or an interest which in whole and in part is not disputed by the claimants. So. the court shall issue an order requiring the conflicting claimants to interplead with one another.‖ B is in a dilemma. The period to file the answer shall be tolled and if the motion is denied. the sheriff now serves on A and C the summons. So. If he pays to C. A. But with this difference. reckoned from notice of denial. Why? So that A and C can fight it out in this case. pursuant to this agreement. May a motion to dismiss the action for interplead be filed by A and C? Can A and C avail of Rule 16. so that regardless of who is the party entitled to receive. Insofar as C is concerned. B have been occupying this apartment paying the rentals. B initiates the complaint against two (2) people who do not want to go to court and litigate. What do you notice with respect to the ground of a motion to dismiss an interpleader action and a motion to dismiss in an ordinary civil action? A. B vs. six (6) months. Who will be furnished copy of the answer of A? A. File a suit for interpleader. here now surfaces C. What is the prayer of B here? A. Sec. So. 1 Rule 62 Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever is the subject matter. this apartment is mine. what is the remedy available to you. Q. Actually. In ordinary civil action. Actually. but shall not be less than five (5) days in any event. he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves. If he (B) pays to A and it turns out lat er that C has a better right. Sec. the movant may file his answer within the remaining period. A will file his answer. Q. Meaning. A is the plaintiff against him. 4 Rule 62. that A and C should fight it out and have this matter of who is entitled to the rental. Q. A and C. We now have this complaint by B against A and C. let’s say. ―B does not pay anymore the rentals to A. the motion to dismiss can be filed only before the answer has been filed. . you will be protected? A. the court may direct in such order that the subject matter be paid or delivered to the court. he runs the risk of paying twice. Q. Q. This question is answered by this Sec. Q. So. That is the concept of interpleader. So. But who initiated the fight between the two (2)? A. Q. he runs the risks of paying again to A because C may not have the right. A will furnish B and C. Do you now see why this is a special civil action? A. Together with the summon is that order of the court directing A and C to interplead with one other. Under Rule 62. That A and C be directed to interplead with each other. the defendants furnish each other. If you were B. each claimant may file a motion to dismiss on the ground of impropriety of the interpleader or on other appropriate grounds specified in Rule 16. Pay to me. do the defendants furnish each other copies of their answers? No. Who will be furnished with the copy of the answer of C? A. A and C will also be summoned under Rule 14. If the interests of justice so require. So. it is not B who is fighting A or C. A and C are compelled to fight each other. 2 Rule 62 Upon filing of the complaint. In an ordinary civil action. it is. before they file their answer? (coz remember under Rule 16.

It settles only actual conflicts. Sec. a cross-claim? A. an original action 2. Q. declare him in default and thereafter render judgment barring him from any claim in respect to the subject matter. cross-claims. there is nothing special about this. May any of them A and C file also a counterclaim. He will give his reasons why the rental should be paid to him. or (b) success of either of the parties. trial proper will now proceed.116 Sec. these provisions are vague. Can you now bring an action in court to determine what his rights are. This is how Rule 62 works. Q. proper in any of the four situations: persons having (a) legal interest in the matter of litigation. this law affects him so he wants to know what his rights are. (Rule 19. the court will now determine who between A and C is entitled to this rental. It cannot settle abstract matters. After A and C have been summoned. 1) 3. that can be done only before there has been a breach of the written document. Take note that a court is supposed to determine actual controversies. defendants are being sued precisely to interplead them Rule 63: Declaratory Reliefs and Similar Remedies Q. on motion. The parties in an interpleader action may file counterclaim. The parties in an interpleader action may file counterclaims. ancillary action 2. except with this provision where they have to furnish each other with copies of their pleadings. (he may be affected by a law). Sec. cross-claims. Of course. serving a copy thereof upon each other conflicting claimants who may file their reply thereto as provided by these Rules. third-party complaints and responsive pleadings thereto. or (d) is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an offer thereof. But in the case of A. third-party complaints and responsive pleadings thereto as provided by these Rules. will adjudicate the counterclaims. And he (A) fears that there may be a litigation arising out of it. what his obligations are under this law. as provided by these Rules. each will assert his right to the rental in this example. on what the rights of B are. what his obligations are under the law or under a written document? A. There are certain provisions here. say regulating sale of liquor. But under the law on declaratory relief. Yes. they will file their answer serving the plaintiff B and other defendants of the copy of the answer. a court is not required to give advisory opinions. on what his obligations are. What now is the disposition of the court with respect to these cases? A. He may want to know what his rights are or what his obligations are. he cannot quite comprehend it. or (c) an interest against both. Q. Yes. And of course. In the answer of A and C. the court shall proceed to determine their respective rights and adjudicate their counterclaims. Can he now file an action in court against B for the purpose only of obtaining a declaration from the court on what his rights are. or there is a law or ordinance. the court is actually called upon to render an opinion in a case involving these documents agreed upon. defendants are original parties to the pending suits 3. under a written instrument or a law. he may be affected by an instrument. Q. If any claimant fails to plead within the time herein fixed. What is the subject matter of a declaratory relief? A. . the court may. RENE NOTES: INTERPLEADER 1. As a rule. Example: A and B entered into an agreement. That is the concept of a declaratory relief. which confer on A certain rights and imposes him certain obligations. It means to say following the pre-trial. After the court has conducted the pre-trial and received the evidence. 5 Rule 62 covers that situation already mentioned earlier. A is a liquor distributor. which impose on B certain obligations and also certain rights. 5 Rule 62 Each claimant shall file his answer setting forth his claim within fifteen (15) days from service of the summons upon him. There are also provisions here. presupposes that plaintiff has no interest in the subject matter of the action or has interest therein in whole or in part which is not disputed by the other parties INTERVENTION 1. can he now file an action against the authorities to determine what his rights are or his obligations are under this ordinance? A. After the pleadings of the conflicting claimants have been filed and pre-trial have been conducted in accordance with the rules. So. A person may be interested in a law.

there will be a suit that will arise. Example: You will notice that this case here illustrates that first part of the rule where a party filing the case is interested under a contract. there is a will. Is B bound by this contract? A. A Assigns his rights under this contract to C. that A undertakes to deliver supplies to B. the idea of the party filing the case is to know before there is a breach of the law on the agreement or written instrument. what his rights are. and This controversy is justifiable. under this contract. A person whose interest thereunder is a deed. what is the idea behind the suit now that the party in this written instrument may file? A. there is a written contract or there is law This written instrument or this law affects the right of a person. Let us assume that in our contract. 3) an action for consolidation of ownership where the subject matter of the suit involves a contract of sale with right to repurchase. on business establishments selling liquor. A person wants this law or this instrument to be interpreted. It is being ask merely to interpret an instrument or a law or it may be asked only to declare what would be the proper construction or interpretation of the law or of the written instrument. The provisions of the written instrument or the law may be vague giving rise to uncertainties. to be given a construction. let’s say. I will now be the one to supply you the materials which A under the contract supposed to deliver to you.117 Q. . in the case then of the declaratory relief. So. He doesn’t know what his rights are. now he is supposed to pay. Example: (how this rule works) Here is a contract entered into between A and B. under the contract or under the written agreement or under the instrument or under the law. What will be the prayer now of B here? A. before there is any breach by A and B or C on this contract. So. C now is the transferee. These are the following actions: 1) an action to quite title to a property or to remove a cloud over a property. does not as a matter of course render an opinion on abstract matters or hypothetical cases. his rights under this law or instruments are affected. the instrument. At the time the suit is brought. 2) an action for the reformation of an instrument. and B refuses. The municipality of X for instance which passed an ordinance on taxes. What is the remedy here? A. It must have to entertain. So. We said that the court. Does this contract bind him or it does not bind him? So. But he is in doubt whether this is applicable to him or not applicable to him because of the vagueness of the law. C now delivers to B what A was supposed to deliver. On the 9th year of the period. what his obligations are. suits that may be brought under the provisions of these rules on declaratory relief. Q. under this law the court may or may not agree to entertain an action for declaratory relief. taxes which are much higher than the amount he is presently paying. That is why. But this is a sort of an exception to this. A. what his obligations are under this contract of C and A. in other words. because if you will not determine this. There are however. He will now pray that the court interpret this contract involved here and find out what his rights are. which the courts cannot decline to entertain. Pursuant to this contract of A and C now says to B. an ordinance or an executive order which affects the rights of a person. the possibility of a suit arising out of this vagueness of this instrument or this doubtful character. 1) 2) 3) 4) 5) For this declaratory relief rules to apply.‖ Q. But other cases of declaratory relief may be denied due course by the court. Here is Y. one way or the other. For instance. there must be a threatened suit that may arise out of it. A was supposed to load this supplies on a ship belonging to A for delivery to B. ―B beginning this 10 th year. Q. executive order. who is a license dealer of liquor. may he (B) be held liable? Q. a will. affects him. a contract or any other written instrument under a law. he wants to know in advance what his rights are. The idea here is to secure from the court a declaration as to the validity of the instrument or of the law. then B can go to the court to declare what his rights are. an ordinance. So he goes to the court and in effect to ask for an opinion. This law. So. what must be established is the concurrence of all these circumstances : There is an instrument. is a law. What is the situation contemplated by Rule 63? A. These three (3) actions mentioned. This contract calls for a ten (10) year period. The other subject matter of a rule on declaratory relief. what his obligations are. B here may file an action for declaratory relief against C and A. when brought under the provisions on Declaratory Reliefs cannot be dismissed by the court.

Q. Let’s assume in this example of A filing the action against the Municipality to contest th e validity of the tax ordinance. his having registered himself as a Chinese notwithstanding. ―this is your right. That is all! Q. Can this declaratory relief be continued? A. in our example here. No more. It merely declares. here are the obligations. there is a breach. The court will now treat this as an ordinary civil action. . After the war. Q. Q. This is the sole purpose. Why? Because this is merely declaratory. Although there is a decision cited in the book of Moran to the effect that when a necessary party is not impleaded. he registered himself as a Chinese citizen. This is his main purpose. So. there is nothing that it can be enforced. whatever judgment the court may render will not put an end to the uncertainty that brought about the controversy. It will simply declare what rights of A has under the contract. Q. Let’s go back to the cases mentioned which can be filed under this provision… on rules on declaratory relief namely: 1) an action to quite title to property or to remove a cloud on a property. he always considered himself as a Filipino. Why? Because an action of this nature is not based on any document. What will happen then? A. And the judgment there can be enforced by execution. It must have to decide those cases. He can file an action against the municipality of X for declaration of whether this law is valid or not. To serve a declaration that he is a Filipino. it is not based on any written agreement. What will be the judgment? A. this in essence is the concept of Declaratory Relief. it will now try the case and render a judgment which can be enforced. ―here are the rights. ―if the petition was entertained by the court but while the case is pending in court. But in a case of validity or invalidity. It will simply be a declaration of whatever or not this law is valid or not. Q. The court refuses to give it due course. So.‖ It cannot be enforced by execution because there is nothing to enforce. Let us now assume that the petition for declaratory relief is filed. What is he allowed to do before there is any breach of this law by him? A. What obligations he has. Because it is merely a statement. then a declaratory relief petition may be filed. And those who are not made parties are not affected by whatever judgment may be rendered in a case. Since the subject of the petition for declaratory relief is a written instrument or a law or an ordinance. When the case was pending. the court can decline. X went to the office of the municipal treasurer of his town and registered himself as a Chinese citizen. or 3) an action for consolidation of ownership. or 2) an action for reformation of an instrument. What was his purpose here? A. which affected by that law or contract or ordinance? Who will be the defendants? A. In one case. No. So that he now wants that he be declared a Filipino citizen. ther e is a violation of the agreement. in our example. etc…‖ So. So. The law says. the court can no longer simply declare what are the rights and obligations. A. No. In his petition he alleged that because of his fear. Q. No more. The law says. On the other hand. Is there anything in the judgment that can be executed? A. the court may opt to consider it so it will hear the case. Ground for instance. Can there be an action for declaratory relief to declare that a certain person is or is not a Filipino citizen? A. he now instituted an action for declaratory relief against the government. if taxpayer paid the taxes while the case is pending. It is as if it were an ordinary civil case. Who will be the parties against whom.118 Q. ―all those persons whose rights are affected by this instrument must have to be made parties. this is your obligation. The court will now resolve with finality the rights of the plaintiff and his obligations. It can no longer be continued. Can the petition for declaratory relief be maintained? A. in 1941 when war was about to break. These cases cannot be declined to be entertained by the court. So. or there is a violation of the law. It does not resolve an actual cont roversy. Nevertheless. To find out whether he is liable under this or he is not liable. plaintiff A paid the taxes. Why? Because the party who is necessary can always later on question an instrument or the law in a separate proceeding and so this declaratory relief will not put an end. So. Q. it will be useless. there is already a breach of the law sought to be clarified.

Is the remedy of a declaratory relief petition. In other words. B here filed a motion to dismiss on the ground of lack of jurisdiction. B now filed an action for declaratory relief based on this judgment. money and effort if the proceedings will continue until terminated. he could have filed a motion for clarificatory judgment. Q. The remedy is certiorari under Rule 45. the judgment was rendered against B. it concerns future application of the instrument or law [Gomez vs. The judgment of the CA may be appealed to the SC. proper in this case? A. declaratory relief may still be availed even if there is breach or violation IF : 1. 1 (c) of Rule 41. RENE NOTES: * In a petition for certiorari. the respondent is exercising judicial or quasi-judicial functions . You could just imagine the waste of time. he could have filed a motion in court to clarify the judgment. This is clear in Sec.119 The petition was dismissed outrightly. there can possibly be no question of doubt arising from that unilateral act. as an appealed remedy from a final judgment or order of for instance. you will go to a process of getting this case heard and decided by the MTC. there are other remedies available to A to find out what his rights are. Q. Why? Any judgment rendered by the MTC here will be void. No. In one case. In other words. IAC) Requisites of Certiorari: 1. The appeal is by certiorari under Rule 45. But of course. No. the order of denial is wrong. when there are still available remedies. the RTC ---------------------. But definitely. there must be a controversy 2. relief sought is merely a determination of the rights and duties 5. If he was in doubt as to what his rights are. Prohibition and Mandamus There are two (2) types of certiorari. Could the petition for declaratory relief be validly filed to secure a declaration that a person is a Filipino citizen? A. He could have appealed from the judgment. Why not? First. it is in this sense that in this (Rule 45) certiorari is not the certiorari mentioned in Rule 65 because Rule 65 does not contemplate an appeal. No one is interested in that document which he executed except himself. The documents. The remedy could be a petition for certiorari. the MTC has jurisdiction. the court may order dismissal of the complaint because it is part of the incidental relief (Newsweek vs. Q. justiciable controversy 2. Example: A sued B in the MTC for nullity of marriage. Look the order of dismissal is merely interlocutory. The documents. So. he wanted to find out what his rights are under that judgment. It cannot be subject of another litigation.judgment and there is an appeal therefrom on a question of law. there is a written instrument. there is one compelling reason why this petition was dismissed and that is the rule on res judicata. First. Why? Because that was a unilateral act on his part. One. You cannot appeal from an interlocutory order. subject matter is a written instrument or a statute 4. the remedy is certiorari under Rule 45. RENE NOTES: Requisites for Declaratory Relief 1. There is another remedy. He then said. Palomar (25 SCRA 827)] or 2. adverse claim between real parties in interest 3. not a certiorari under Rule 65. which is the basis of this petition. The judgments of the Sandiganbayan may be appealed to the SC. So. this cannot be resorted to. which he signed when he registered himself as a Filipino does not constitute a written agreement.‖ Q. this petition for declaratory relief is available only when there is no other available remedy against a written instrument or against a law. there must be no breach or violation of instrument or statute 6. Exceptions:. Under Rule 65. That has been already resolved with finality. if you do not correct this error. the suit was filed by A against B. and you are B. So. What is the remedy here if you cannot appeal? A. So. B may question the order denying the motion to dismiss. For instance. not objected to by the adverse party and the court has rendered judgment after full blown trial [Matalin Coconut Producers (143 SCRA 1)] Rule 65: Certiorari. no other available or sufficient remedy GR: Declaratory relief is available BEFORE there is actual breach or violation of an instrument or statute. which is the basis of this petition. The motion is denied. To better have an idea of what Rule 65 covers we may have this situation. Can you appeal if you were B from this order denying your motion to dismiss? A.

appeal and certiorari are remedies that does not exclude each other. However. questions raised are too unsubstantial to warrant further proceedings * As a GENERAL RULE. EXCEPT: 1. speedy and adequate remedy then the petition must fail for certiorari may not be resorted to as a substitute for appeal. he can comply with it. 002-03) Rule 66: Quo Warranto Quo Warranto – A proceeding or writ issued by the court to determine the right to use an office. speedy and adequate remedy Requisites of Mandamus: 1. Its purpose is to give the court a quo the opportunity to correct itself. * The jurisdiction of the Sandiganbayan over certiorari proceedings is only in aid of its appellate jurisdiction. if for public purpose 6. or else the essence will be defeated 3. the respondents acted without or in excess of its jurisdiction or acted with grave abuse of discretion 4.120 3. position or franchise and to oust the person holding or exercising such office. speedy and adequate remedy Requisites of Prohibition: 1. Quo warranto may also be used when an association acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. there must be no other plain. if the issue has been raised and promptly passed upon by the court 4. and adequate remedy. no plain. the respondent is exercising judicial or quasi-judicial or ministerial functions 3. prosecuted manifestly for delay 3. there must be a clear legal right or duty 2. a motion for reconsideration is an essential precondition for the filing of the petition for certiorari as a form of a plain. duty or act to be performed must be existing – correlative right will be denied if not performed by the respondents 5. the respondents acted without or in excess of its jurisdiction or acted with grave abuse of discretion 4. in this light. when there is extreme urgency 3. there must be a controversy 2. the right to the office itself is disputed MANDAMUS Applicable only in cases where the right to the office is NOT in dispute Quo Warranto in Electoral Proceeding Quo Warranto in Electoral Proceeding . speedy and adequate remedy in the ordinary course of law * A writ of certiorari can never be issued by an RTC against an administrative agency because an administrative agency when exercising quasi-judicial functions is considered as of the same rank as the RTC. Hence. a writ of prohibition may be issued by the RTC against administrative agencies only when what is sought to be prohibited is a ministerial function but not quasi-judicial function. CA. Grounds for Dismissal of Petition: 1. in such a case appeal is deemed abandoned. Preliminary injunction must be sought. speedy and adequate remedy.if suggested by the court a quo GENERAL RULE: If after judgment the petition for certiorari is availed of when appeal is plain. speedy. a petition for certiorari relating to certain incidents therein may prosper where the appeal does not appear to be the plain. (Lansang vs. office or franchise. EXCEPTION: If after judgment an appeal has been perfected. respondent must be exercising a ministerial duty – a duty which is absolute and imperative and involves merely its execution 4. the act to be performed must be practical – within the powers of the respondent to perform such that if the writ of mandamus was issued. position or franchise if his right is unfounded or if a person performed acts considered as grounds for forfeiture of said exercise of position. if the assailed judgment/order is a patent nullity 2. CERTIORARI *Intended as a corrective remedy *Annul and modify a proceeding Discretionary act Exercising judicial and quasi-judicial function PROHIBITION Prevent the commission or carrying out of an act MANDAMUS Intended to compel performance of an act desired Ministerial act Judicial and/or judicial function non- Purpose of the writ. With respect respondent. QUO WARRANTO Designed to try the right or title to the office. (SC Admin. there must be no other plain. Cir. be the Discretionary and ministerial act Judicial/or non-judicial function * If a motion for reconsideration or new trial is filed the period shall not only be interrupted but another 60 days shall be given to the petitioner. patently without merit 2. if the issue is purely a question-of-law 5. 184 SCRA SCRA 230) * Mere filing of petition for certiorari under this rule will not stay execution of judgment. Act sought to controlled.

upon registration (Sec. (Sec. Upon payment or tender of compensation fixed by the judgment and payment of the costs by plaintiff (Section 10) Rule 68: Foreclosure of Real Estate Mortgage *Effect in the Encumbrancer is not Impleaded a. Non-resident mortgagor unless there is attachment 3. b) buyer bought the property in good faith . 10) . even if the petition prospers.To prevent this.if personal property. advance payment for just compensation * Only an ANSWER is allowed under Sec. * Instances where Court cannot render Deficiency Judgment 1. the mortgagee must annotate a notice of lis pendens in the certificate of title so that subsequent buyer(s) have notice. the mortgagee must file his claim with the probate court 4. 7 Rule 86 when mortgagor dies. * When may plaintiff enter into possession of property? 1. this rule shall not apply if: a) the property is covered by the Torrens System. When the owner refuses to sell 2.presupposes that the respondent is already actually holding office and action must be commenced within one year from cause of ouster or right of petitioner to hold office arose . who. Rule 67: Expropriation . or illegal association . serving notice to defendant and after depositing of assessed value of property for taxation purposes with authorized government depository (Section 2) 2. upon payment of just compensation (Sec.Mortgagees can substitute or implead the buyer. 19 Rule 3) However. his equity or right of redemption is not affected or barred by the judgment of the court (Sunlife Insurance vs. 3 Rule 67. forfeiture.The defendant cannot be declared in default. Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of the exercise in the context of the facts involved. and 2. no other responsive pleadings are allowed * Declaration of Default . . the remedy of the senior encumbrancer is to file an INDEPENDENT proceeding to foreclose the right to redeem by requiring the junior encumbrancer to pay the amount stated in the order of execution or to redeem the property in a specified time *Remedy of Mortgage against the Buyer of the Mortgage Property: .an electoral proceeding under the Omnibus Elections Code for the exclusive purpose of impugning the election of a public officer on the ground of ineligibility or disqualification to hold the office . Money 2.prerogative writ by w/c the govt.All properties may be expropriated except: 1. 13) STAGES IN EXPRORIATION 1.To contest the right of an electoral public officer to hold public office. Sec. provide damages if court finds plaintiff has no right to expropriate 2. Recto law 2.may be filed by any registered candidate for the same office and. Failure to file an answer would result to the court’s judgment on the right to expropriate without prejudice to the right to present evidence on just compensation. would not be entitled for that office.if real property.petition must be filed within 10 days from the proclamation of the candidate . Third person owned the property mortgaged but not solidarily liable with the debtor . Determination of JUST COMPENSATION. Diez) b.the petitioner must be the government or the person entitled to the office and who would assume the same if his action succeeds. can call upon any person to show by what title he holds a public office or exercises a public franchise . 2 1. his right is not affected because he is merely a necessary party not an indispensable party c. Upon filing of complaint. .121 . Choses in action * When is expropriation proper? 1.three grounds: usurpation. * When is Title Vested in Expropriation: . When he agrees to sell but an agreement as to price cannot be reached *Purpose of Preliminary Deposit under Sec.

*MTC has jurisdiction if the value of the property does not exceed P20. the assignment of the real estate to the party making the payment The judgment shall state: 1. P50. failure to comply with lease of contract *the plaintiff need not have been in prior physical possession *period is counted from the date of last demand or last letter of demand .000 outside Metro Manila.000 – outside Metro Manila. either forcible entry or unlawful detainer *All cases of forcible entry and unlawful detainer irrespective of the amount of damages or unpaid rentals sought to be recovered should be brought to the MTC.right of the debtor. P50.000 within Metro Manila.122 JUDICIAL FORECLOSURE Requires court intervention There is only an equity of redemption Alternative remedy to personal action for the amount due to satisfy mortgage debt EQUITY OF REDEMPTION . the fact of such payment. *MTC has jurisdiction if the value of the property does not exceed P20. and 2. ACCION REINDIVICATORIA *an action for the recovery of ownership w/c necessarily includes the recovery of possession. in severally the portion of the estate assigned to him.governed by Rule 68 EXTRAJUDICIAL FORECLOSURE No court intervention necessary Right of redemption exists Proper only when provided for in the contract RIGHT OF REDEMPTION . or 2. his successor in interest or any judicial creditor or judgment creditor of said debtor or any person having alien on the property subsequent to the mortgage or deed of trust under which the property is sold to redeem the property w/in one year from the registration of the Sheriff’s certificate of foreclosure sale . Threat or Stealth (FISTS) *no previous demand for the defendant to vacate the premises is necessary *the plaintiff must prove that he was in prior physical possession of the premises until he was deprived thereof by the defendant *the 1 year period is generally counted from the date of actual entry on the land UNLAWFUL DETAINER *possession is inceptively lawful but it becomes illegal by reason of the termination of his right to the possession of the property under his contract w/ the plaintiff *demand is jurisdictional if the ground is: 1.000 within Metro Manila. the name of the purchaser(s). 29-31 of Rule 39 JUDGMENT If actual partition of property is made If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court If the property is sold and the sale is confirmed by the court CONTENTS OF JUDGMENT The judgment shall state definitely: (1) by metes and bounds and adequate description. To vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action To vest the real estate in the purchaser(s) making the payment(s). How to actually partition the property * The appointment of Commissioners is mandatory unless there is an extra-judicial partition between the parties. (2) the particular portion of the estate assigned to each party The judgment shall state: 1. P50.000 outside Metro Manila. a definite description of the parcels of the real estate sold to each purchaser EFFECT OF JUDGMENT To vest in each party to the act. *RTC has jurisdiction if the value of the property exceeds P20.governed by Secs. Strategy. Two (2) Issues in an Action for Petition 1.right of the defendant mortgagor to extinguish the mortgage and retain ownership of the property by paying the debt w/in 90-120 days after the entry of the judgment or even after the foreclosure sale but prior to confirmation . *ejectment proceeding under Rule 70. P50. non-payment of rentals. and 2.000 within Metro Manila FORCIBLE ENTRY *possession of the land by the defendant is unlawful from the beginning as he acquires possession by Force. Intimidation. Whether or not a co-ownership exists 2. ACCION PUBLICIANA *a plenary action for the recovery of the real right of possession has lasted for more than one year. Rule 70: Forcible Entry and Unlawful Detainer Three (3) Kinds of Action for Recovery of Possession ACCION INTERDICTAL *summary action for the recovery of physical possession where the dispossession has not lasted for more than one year.000 – outside Metro Manila.000 within Metro Manila *RTC has jurisdiction if the value of the property exceeds P20. free from the claims of the parties to the action.

does the plaintiff ask the restoration of possession? (Dizon vs. Indirect Contempt . . e) Assuming to be an attorney or an officer of the court w/o authority. * However the RTC may issue a writ of preliminary mandatory injunction to restore plaintiff in possession if the court is satisfied that: 1. threat. Concina) * The court can award damages in ejectment cases provided the damages refer only to : a. process.123 Tenor of Demand: a. and (3) deposits with the appellate court the amount of rent due from time to time under the contract or in the absence of a contract. there can still be unlawful detainer because ejectment considers implied contracts. or b. INDIRECT CONTEMPT Punished after being charged and hearing GROUNDS: a) misbehavior of an officer of a court in the performance of his official duties or in his official transactions. or attempted rescue. If committed against: a. (2) files sufficient superseades bond to pay the rents. 214 SCRA 216) *Questions to be resolved in an action for forcible entry are : First. MTC – fine not exceeding P5. c) Any abuse or any unlawful interference w/ the proceedings not constituting direct contempt d) Any improper conduct tending to degrade the administration of justice. b.000 or imprisonment not exceeding (10) days or both b. If committed against: a. MTC – fine not exceeding P200 or imprisonment not exceeding one (1) day. was the possessor ousted therefrom within one year from the filing of the complaint by force. f) failure to obey a subpoena g) Rescue. or 2. who had actual possession over the piece of real property? Second. the reasonable value of the use and occupation of the premises on or before the 10th day of each succeeding month or period.If there is no formal contract between parties. Pay AND Vacate.000 or imprisonment not exceeding 6 months or both. . b. d) Refusal to be shown or to answer as witness or to subscribe an affidavit or deposition. damages and costs occurring down to the time of judgment appealed from. RTC – fine not exceeding P2. RTC – fine not exceeding P30. liquidated damages since they are already part of the contract Rule 71: CONTEMPT DIRECT CONTEMPT *summary in nature GROUNDS: a) misbehavior in the presence of or near a court as to obstruct or interrupt the proceedings b) disrespect towards the court c) Offensive personalities towards others. provided such person files a bond and conditioned that he will abide by and perform the judgment should the petition be decided against him. c. strategy or stealth? Third. The execution of the judgment shall NOT be suspended until a bond is filed by the person adjudged in contempt. Possession by tolerance creates an implied promise to vacate the premises upon the demand of the owner: (Peran vs.000 or imprisonment not exceeding (1) month or both *Remedies to Challenge Contempt Judgments: Direct Contempt . the violation of the right in forcible entry authorizes speedy redress. upon motion of plaintiff within 10 days from perfection of appeal. order. 2. defendant’s appeal is frivolous or dilatory. b) Disobedience of or resistance to a lawful writ.The person adjudged for indirect contempt may appeal such judgment or final order to the proper court as in criminal cases. CA. or judgment. appeal of plaintiff is prima facie meritorious. the fair and reasonable value of the use and enjoyment of the property or the rent arising from the loss of possession. of a person or property in the custody of an officer. if a forcible entry is allowed only after a number of years then it may well be that no action for forcible entry can really prescribe. CFI of Sorsogon) *The doctrine of tolerance applies only if possession is lawful from the start. (Munoz vs. Comply with the condition of the lease AND Vacate *Judgment on Ejectment Proceeding are Immediately Executory Unless the Defendant: (1) perfects his appeal. In short said doctrines applies only to unlawful detainer cases and not to forcible entry because: 1. or both. Unauthorized intrusion to any real property after being ejected. The execution of the judgment shall be suspended pending resolution of the petition.The person adjudged in direct contempt may avail himself of the remedies of certiorari or prohibition. arrears.

.124 -The judgment against a person adjudged to be in contempt is immediately executory and can be stopped only by filing a bond.